Racializing Justice, Disenfranchising Lives: The Racism, Criminal Justice, and Law Reader (Critical Black Studies)

Racializing Justice, Disenfranchising Lives

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The Critical Black Studies Series Institute for Research in African American Studies Columbia University Edited by Manning Marable The Critical Black Studies Series features readers and anthologies examining challenging topics within the contemporary black experience—in the United States, the Caribbean, Africa, and across the African Diaspora. All readers include scholarly articles originally published in the acclaimed quarterly interdisciplinary journal Souls, published by the Institute for Research in African-American Studies at Columbia University. Under the general editorial supervision of Manning Marable, the readers in the series are designed both for college and university course adoption, as well as for general readers and researchers. The Critical Black Studies Series seeks to provoke intellectual debate and exchange over the most critical issues confronting the political, socioeconomic and cultural reality of black life in the United States and beyond. Titles in this series published by Palgrave Macmillan: Racializing Justice, Disenfranchising Lives: The Racism, Criminal Justice, and Law Reader Edited by Manning Marable, Ian Steinberg, and Keesha Middlemass Seeking Higher Ground: The Hurricane Katrina Crisis, Race, and Public Policy Reader Edited by Manning Marable and Kristen Clarke Transnational Blackness: African Americans Navigating the Global Color Line Edited by Manning Marable and Vanessa Agard-Jones The Islam and Black America Reader Edited by Manning Marable and Hisham Aidi The New Black History: The African-American Experience since 1945 Reader Edited by Manning Marable and Peniel Joseph Beyond Race: New Social Movements in the African Diaspora Edited by Leith Mullings The Black Women, Gender, and Sexuality Reader Edited by Manning Marable Black Intellectuals: The Race, Ideology, and Power Reader Edited by Manning Marable

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Racializing Justice, Disenfranchising Lives: The Racism, Criminal Justice, and Law Reader

Edited by Manning Marable, Ian Steinberg, and Keesha Middlemass

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Racializing Justice, Disenfranchising lives Copyright © Manning Marable, 2007. All rights reserved. No part of this book may be used or reproduced in any manner whatsoever without written permission except in the case of brief quotations embodied in critical articles or reviews. First published in hardcover in 2007 by PALGRAVE MACMILLAN™ 175 Fifth Avenue, New York, N.Y. 10010 and Houndmills, Basingstoke, Hampshire, England RG21 6XS. Companies and representatives throughout the world. PALGRAVE MACMILLAN is the global academic imprint of the Palgrave Macmillan division of St. Martin’s Press, LLC and of Palgrave Macmillan Ltd. Macmillan® is a registered trademark in the United States, United Kingdom and other countries. Palgrave is a registered trademark in the European Union and other countries. ISBN-13: 978-1-4039-7766-3 hardcover ISBN-10: 1-4039-7766-6 hardcover ISBN-13: 978-1-4039-7767-0 paperback ISBN-10: 1-4039-7767-4 paperback Library of Congress Cataloging-in-Publication Data Racializing justice, disenfranchising lives : the racism, criminal justice, and law reader / edited by Manning Marable, Ian Steinberg and Keesha Middlemass. p. cm. — (The critical black studies series) Includes bibliographical references and index. ISBN 1-4039-7766-6 (alk. paper) — ISBN 1-4039-7767-4 (alk. paper) 1. Discrimination in criminal justice administration—United States. 2. Crime and race—United States. 3. African Americans—Social conditions. 4. African American criminals. 5. United States—Race relations. I. Marable, Manning, 1950– II. Steinberg, Ian. III. Middlemass, Keesha. HV9950.R34 2007 364.3’496073—dc22 2007003434 A catalogue record of the book is available from the British Library. This volume includes articles which originally appeared in Souls, published by the Institute for Research in African-American Studies, Columbia University. Design by Scribe Inc. First PALGRAVE MACMILLAN paperback edition: September 2007 10 9 8 7 6 5 4 3 2 1 Printed in the United States of America.

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CONTENTS

Introduction Racializing Justice, Disenfranchising Lives Manning Marable I.

The Criminal Justice System and the New Racial Domain

1

The Hypercriminalization of Black and Latino Male Youth in the Era of Mass Incarceration Victor M. Rios

1

17

2

Reconstructing Race and Crime: The Radical Tradition Revisited Tony Platt

35

3

The Condemnation of Little B Elaine Brown

43

4

The Rockefeller Drug Laws Robert Gangi

49

5

Racism and Capital Punishment George Kendall

53

6

“In Defense of Mumia”: The Political Economy of Race, Class, Gender, and Social Death Leonard Weinglass

59

II. Women, Violence, and Incarceration 7

8

9

The Effect of the Prison–Industrial Complex on African American Women Natalie J. Sokoloff

73

Toward a Black Feminist Liberation Agenda: Race, Gender, and Violence Kristen Clarke

91

The Female Bogeyman: Political Implications of Criminalizing Black Women Julia S. Jordan-Zachery

10 A Bad Relationship: Violence in the Lives of Incarcerated Black Women Nikki Jones Middlemass

101

123

vi

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III. Racism, Law, and Public Policy 11 Reassessing Race Specificity in American Law and Public Policy Lorenzo Morris and Donn G. Davis

133

12 “Tell the Court I Love My [Indian] Wife”: Interrogating Race and Self-Identity in Loving v. Virginia Arica L. Coleman

159

13 Resistance, Redemption, and Transformation: African American and Latino Prisoners Living with the HIV/AIDS Virus Laura T. Fishman

175

14 The Cactus That Must Not be Mistaken for a Pillow: White Racial Formation Among Latinos Daniel M. Rochmes and G. A. Elmer Griffin

197

IV. Voting Rights and Disenfranchisement 15 Unfit to Vote: A Racial Analysis of Felon Disenfranchisement Laws Keesha M. Middlemass

217

16 Felon Voting Rights and the Disenfranchisement of African Americans Christopher Uggen, Jeff Manza, and Angela Behrans

237

17 Jim Crow is Alive and Well in the Twenty-First Century: Felony Disenfranchisement and the Continuing Struggle to Silence the African American Voice Ryan Scott King

247

V. First Person: Inside U.S. Prisons 18 “A True Democracy”: Talking with Eddie Ellis Bianca Vázquez

267

19 manipulator under Manipulation shhh: muMs Geoff K. Ward

281

20 The Longest Hour Craig Davis

293

21 “From Object to Subject”: Jazz Hayden Russell Rickford

301

22 Political Riddles: Bitten, Seduced, and Fooled Alejo Dao'ud

313

23 A Victim to Passion Robert Sanchez

317

24 What Does the Ghetto Mean? Robert Sanchez

319

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VI. Challenging the Prison–Industrial Complex 25 State of Emergency Angela Y. Davis

323

26 From Punishment to Rehabilitation: Empowering African American Youth Monique Williams and Isis Sapp-Grant

329

27 Crime Prevention in the African American Community: Lessons Learned from the Nation of Islam Shaun Gabbidon

335

28 New York Theological Seminary Prison Program: Sing-Sing Correctional Facility Our Context

347

29 Wesley Robert Wells and the Civil Rights Congress Campaign Theodore Hamm

353

30 Prepared to Govern Justly Van Jones

367

VII. Conclusion: The Color of Justice Conclusion

The Carceral States of America Keesha M. Middlemass

Index

373 381

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I N T R O D U C T I O N

RACIALIZING JUSTICE, DISENFRANCHISING LIVES TOWARD AN ANTIRACIST CRIMINAL JUSTICE Manning Marable Professor of Public Affairs History and African American Studies and Director, Center for Contemporary Black History, Columbia University

Prison is a legitimate criminal sanction—but it should be used sensibly, justly, parsimoniously, and with due consideration for the principles of proportionality and respect for human dignity required by international human rights law. The incarceration of hundreds of thousands of low-level nonviolent drug offenders betrays indifference to such considerations. Human Rights Watch, May, 20001

Throughout the entire racial history of the United States, a series of state-sanctioned institutions have exited that have “regulated” the African American population for the purpose of preserving white power and privilege. During the first two and a half centuries of the black presence on the North American continent, the predominant mode of black oppression was enslavement. Blacks as a group were relegated to life outside of civil society; they were legally defined as private property, not citizens, and were largely excluded from legal and constitutional rights. After a brief experiment in biracial democracy known as Reconstruction (1865–77), African Americans were relegated to a subordinate economic and social status through the regime of Jim Crow segregation. Although technically “free,” the majority of blacks found themselves tethered to the land by sharecropping, debt peonage, “convict-leasing,” and other forms of penury. In the twentieth century, as millions of rural southern blacks migrated to the industrial northeast and Midwest, seeking employment and a better way of life, they quickly confronted a newer form of racial exclusion and stigmatization—the urban ghetto. Ghettoization once again relegated blacks to the margins of America’s commercial, cultural, and political life; through policies such as “redlining”

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by banks and financial institutions, blacks were denied the credit and capital needed to purchase their own homes and businesses. They continued to encounter fierce discrimination in employment and suffered from substandard schools, health facilities, and housing. Each of these institutional barriers to racial access and opportunity reinforced the deep-seated cultural and psychological assumptions of black inferiority that millions of white Americans uncritically accepted as normative and customary. American racial history was fundamentally altered by the dramatic events of 1954–75, when an unprecedented series of civil demonstrations, legal maneuvers, and political interventions challenged the legitimacy of Jim Crow segregation. A formation of civil rights groups with widely divergent tactics and political ideologies— such as the National Association for the Advancement of Colored People (NAACP), the Congress of Racial Equality (CORE), the Southern Christian Leadership Conference (SCLC), and the Student Nonviolent Coordinating Committee (SNCC)—all contributed in different ways to barring segregation from public life. The pressure they exerted on the political establishment produced major legislative victories, such as the 1964 Civil Rights Act and the 1965 Voting Rights Act. Presidents John F. Kennedy, Lyndon B. Johnson, and Richard M. Nixon signed a series of Executive Orders establishing the principles of “affirmative action” and “equal opportunity,” creating avenues for advancing minorities and women in both the public and private sectors. Under President Johnson, new social welfare programs, public housing programs, and health programs were extended to the poor, all of which reduced the percentage of blacks’ poverty and narrowed the historic wage gap between African Americans and whites. Indirectly, the “hegemony” of the civil rights discourse had a positive effect on other public policy debates, moving the nation to the left on a host of issues. The Supreme Court, for example, outlawed the imposition of the death penalty nationally and ordered in a series of decisions new measures required by local law enforcement to protect the constitutional rights of citizens accused of crimes (e.g., the Miranda decision). The consequences of these political victories on behalf of black freedom were many and, in retrospect, somewhat unanticipated. There was a rapid, unprecedented growth of an African American professional, administrative, clerical, and managerial class making up, by 1980, nearly one-quarter of the formal black labor force. This social group was the primary product of affirmative action and equal opportunity enforcement. Black entrepreneurs as a social category also quadrupled in size in less than two decades as the federal government and various cities adopted minority economic set-aside provisions guaranteeing a certain percentage of government contracts to minority and women vendors. Within electoral politics, African American representation in Congress soared, from five in 1964 to over thirty-five three decades later. Beginning in 1967, with the election of African American mayors in Gary, Indiana, and Cleveland, black candidates won a string of impressive mayoral victories—in Los Angeles, Atlanta, Detroit, Newark, New Orleans, Philadelphia, Denver, and elsewhere. Such successes fostered the illusion by the 1970s that the nation, as a whole, had somehow managed to purge itself of the debilitating effects of white racism and black oppression. What went largely unexamined was the rapid growth of

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an urban class of black unemployed and low-wage workers whose material conditions were becoming increasingly worse. Millions of blacks and Latinos, trapped inside the rotting central cores of America’s deindustrialized cities, lacked meaningful avenues of economic survival. The historic turning point in how “race” was “managed” by the state occurred under the aegis of the Reagan administration, from 1981 to 1989. A conservative Republican, Ronald Reagan was deeply hostile to the policies of welfare state capitalism that had flourished under Johnson. In relatively short order, social welfare programs, food stamps, public housing, and job training programs were either eliminated or severely curtailed. A massive military expansion, designed to challenge and ultimately bankrupt the Soviet Union, was launched. Behind these policy initiatives was a political-philosophical approach that, two decades later, the world would come to know as neoliberalism. As famed urban geographer David Harvey has explained, the Reagan administration “emphasized that the role of government was to create a good business climate rather than look to the needs and well-being of the population at large.” This meant, for example, “elaborate revisions in the tax code— mainly concerning depreciation on investments—[that] allowed many corporations to get away without paying any taxes at all, while the reduction of the top tax rate for individuals from 78 to 28 percent obviously reflected the intent to restore class power.” The strength of organized labor was systematically broken, as corporations were freed to jettison their pension obligations to employees. Harvey adds, “Worst of all, public assets were freely passed over into the private domain.”2 The conservative politics of neoliberalism required a fresh approach in dealing with African American demands on the state. Internationally, the Reagan administration forged an informal alliance with the white-minority regime of apartheid South Africa, offered covert assistance to terrorists destabilizing the fragile independent African states of Mozambique and Angola, and in 1983, militarily invaded the black Caribbean island of Grenada. Domestically, the administration sought to end civil rights enforcement and to purge the U.S. Civil Rights Commission of its liberal critics. These maneuvers were only partially successful. Americans, regardless of race, still retained a clear understanding of what the central debates had been regarding the elimination of legal segregation, which was the result of mass, democratic protests; court challenges; and nonviolent, civil disobedience campaigns led by Martin Luther King Jr. and many others. The majority of white Americans, at that time, still supported affirmative action and reforms such as race-sensitive scholarship programs to compensate blacks for generations of unfair exclusion from colleges. Dozens of major public school districts across the country continued to be under court-ordered desegregation sanctions. Moreover, the racial animus and hostility of the Reaganites precipitated new waves of black collective resistance in the 1980s; for example, Harold Washington’s remarkable mayoral victories in Chicago in 1983 and 1987; Jesse Jackson’s “Rainbow Coalition” presidential campaigns of 1984 and 1988; the antiapartheid campaign of 1984–87, which successfully broke the administration’s Constructive Engagement strategy with South Africa and initiated divestments by banks, corporations, and universities from dealings with South Africa.

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By the mid-1980s, however, the Reagan administration’s approach toward the “regulation” of the urban black poor took a new tack. Justice Department officials encouraged local and state law enforcement officials to become “more aggressive” in efforts to combat “urban crime.” Municipalities began initiating “massive street sweeps, ‘buy and bust’ operations” in predominantly black, brown, and poor neighborhoods. According to the research of Human Rights Watch, these “police activities . . . heavily targeted participants in street retail drug transactions in these neighborhoods. Not surprisingly, comparably few of the people arrested there have been white.” Police and state highway patrol officers increased “racial profiling”—the “police practice of stopping, questioning, and searching minorities in vehicles or on the street based solely on their appearance.”3 The result of these policies directly contributed to a profound change in the racial composition of Americans incarcerated in federal and state correctional facilities. In 1979, for example, 39 percent of all individuals admitted to state and federal prisons that year were African Americans. By 1990, black Americans made up 53 percent of all prisoner admissions.4 Between 1982 and 1989, the overall number of prisoners in U.S. correctional facilities rose from approximately 650,000 to one million. Conservatives insisted that this increase was the social cost of combating violent criminals and drug addicts who were threatening to destroy America’s cities and suburbs. Yet crime statistics did not provide a rational explanation for this unprecedented growth. In the mid-1980s, violent crime rates across the board—that is, the national rates for murder, robbery, rape, burglary, and so on—peaked and began to decline. (The sole exception was an increase in the number of aggravated assaults nationally.) Nevertheless, the political rhetoric deploring “unchecked violent crime” accelerated; in the media, sensational stories usually highlighting black perpetrators of crime became ubiquitous. Hundreds of U.S. cities and towns, with billions of dollars in federal assistance, greatly expanded their local police agencies. Many established SWAT (special weapons and tactics) squads possessing paramilitary weaponry and armored vehicles to combat the scourge of minority crime. Major cities like New York developed plainclothes police squads such as the Street Crimes Unit, which conducted warrantless searches, stop-and-frisk operations, and random racial profiling of blacks and Latinos, particularly in predominantly white neighborhoods. The Reagan administration, and later, the Republican administration of George H. W. Bush, praised such measures as part of a War on Drugs. The hidden “racial paradox” in America’s celebrated War on Drugs was that, throughout the 1980s and 1990s, when both powdered and crack cocaine were introduced and, for about a decade, proliferated in both urban and suburban markets, the overwhelming majority of illegal drug abusers were white. As of 1998, approximately 62 million white Americans had, at some point in their lives, consumed illegal drugs—marijuana, crack, powered cocaine, heroin, and so on. Of that number, according to the Substance Abuse and Mental Health Administration, 18.5 million whites had used powdered cocaine; 2.7 million had consumed it during 1998, with about 1.1 million white people abusing cocaine at least monthly. By contrast, only an estimated 8.2 million African Americans had ever used any illicit drug—not just cocaine—in their lifetimes. Only 2.1 million blacks had ever tried powdered

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cocaine, and 1 million used crack at least once. If racial fairness existed in the policies and practices of law enforcement, one might reasonably expect that the racial demographics of those arrested and subsequently imprisoned for illicit drug sales and usage would conform with the general profile of users established by the Substance Abuse and Mental Health Administration. In short, millions of white illicit drug abusers somehow avoided detection, surveillance, arrest, and prosecution during the national War on Drugs.5 How did this happen? The “illicit drugs of choice” for white middle-class Americans were primarily marijuana and powdered cocaine in the 1990s. Despite the continued existence of federal, state, and local laws against marijuana possession and sale, by 1996 only 4.3 percent of all admissions to correctional facilities were the result of marijuana-related arrests. In most jurisdictions, district attorneys largely stopped prosecuting first-time marijuana arrests. In the state of Michigan, for example, in 1996, marijuana offenders made up barely 0.1 percent of all drug-related admissions to state prisons that year. Similar statistics for the low percentages of marijuana admissions to state prisons were recorded in North Carolina (0.05 percent), Pennsylvania (0.4 percent), Nevada (0.5 percent), Wisconsin (0.5 percent), and New York (0.6 percent), in 1996.6 The federal antidrug authorities made the strategic decision to focus their activities not in the suburbs, where the numerical majority of illicit drug abusers lived, but in hard-core, central cities, in the most impoverished neighborhoods. According to a 1991–94 national survey conducted by the Substance Abuse and Mental Health Services Administration (SAMHSA) of the U.S. Department of Health and Human Services, African Americans made up approximately 16 percent of admitted illicit drug dealers, and whites accounted for 82 percent. Yet, inexplicably, “the percentage of black drug arrests was at least double the percentage of blacks among current drug users. Whites, conversely, were underarrested, that is, they constituted a smaller percent of drug arrests than they did of drug users.”7 These trends continued throughout the 1990s. A 1998 SAMHSA survey found that “there were almost five times as many current white marijuana users as black and four times as many white cocaine users. Almost three times as many whites had ever used crack as blacks” (see Table 1). The War on Drugs quickly deteriorated into a race-conscious war on urban black and, to a lesser extent, Latino communities. Federal sentencing guidelines required significantly longer prison terms for drug abusers convicted of crack offenses than for users of powdered cocaine. Following the lead of New York State, which in the 1970s had adopted its draconian Rockefeller Drug Laws, state after state established mandatory minimum sentencing laws for drug-related offences, taking discretionary sentencing powers from judges away. In many jurisdictions, all-white juries were predisposed (or, as a result of media coverage, preconditioned) to question or dismiss evidence exonerating blacks accused of drug offenses.8 In almost every state, the numbers of prisoners grew beyond the capacities of the correctional officials and facilities intended to manage them. The experience of New York State provides a typical example. From 1813 until 1981, New York State constructed 33 state prisons, including Sing-Sing (Ossining) and Attica. In the following two decades, the state was forced to build another 38 correctional facilities. Nearly all

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of these prisons were located in predominantly white, rural areas in upstate New York, frequently hundreds of miles from major metropolitan areas. These facilities generated tens of thousands of new jobs to rural whites. Statewide, the prisoner population soared from 12,500 in 1971 to 71,000 by 1999. To pay for this massive prison expansion, New York’s legislature reallocated hundreds of millions of dollars from the state’s traditional subsidies to the State University of New York system (SUNY) and the City University of New York (CUNY) system. According to the Correctional Association of New York and the Washington, DC–based Justice Policy Institute, between fiscal years 1988 and 1998, “New York’s public universities have seen their operating budgets plummet by 29 percent while funding for prisons has increased by 76 percent. In actual dollars, that nearly has been an equal trade-off, with the Department of Correctional Sciences receiving a $761 million increase during that time while the state funding for New York’s city and state university systems has declined by $615 million.”9 The public policy trade-off between prisons and public colleges represented a double blow to black, Latino, and low-income New Yorkers, who were disproportionately subjected to racial profiling, indiscriminate police sweeps, and drug-related arrests. CUNY had for decades been the primary institution of access and opportunity for first-generation minority and immigrant college students, but the severe budgetary cuts forced university administrators to hike tuitions significantly, placing education beyond the means of thousands of working-class students. The 1998 study of the Correctional Association of New York and the Justice Policy Institute found that, “There are more blacks (34,809) and Hispanics (22,421) locked up in prison than there are attending the State University of New York, where there are 27,925 black and Hispanic students.” Between 1989 and 1998, “there were more blacks entering the prison system for drug offenses each year than there were graduating from SUNY with undergraduate, masters and doctoral degrees combined.”10 In 1995, federal subsidies supporting Pell Grant financial aid to prisoners who were enrolled in college programs were terminated, and most states quickly followed suit. Despite substantial criminological evidence indicating that prisoners who enter educational programs have significantly lower recidivism rates, federal and state authorities were prepared to severely curtail, and in many cases eliminate, all college credit courses behind bars. By 1997, only 35 percent of all prisoners released that year had ever enrolled in educational programs during their time of incarceration. Only 27 percent had participated in vocational or job training programs to prepare them for gainful employment.11 Under the Democratic administration of President William Jefferson Clinton (1993–2001), the essentially coercive model of racializing criminal justice and law enforcement constructed by Republicans was permitted to continue. Under Clinton’s tenure, another 700,000 prisoners were added to the nation’s correctional facilities. A series of popular films—“New Jack City,” “Boyz in da Hood,” “Juice,” “Menace 2 Society”—popularized the image of the criminalized young black male. White juries, when confronted with circumstantial evidence of illicit drug use and sales in connection with African American and Latino males, had little difficulty making the connections. This was particularly true in the South, where the longstanding traditions of

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white supremacy and black oppression were still deeply engrained in the legal process. In Louisiana, for example, by 1996, 73 percent of all new admissions to that state’s prisons were African Americans. In other formerly segregated or slave states, the patterns were similar: in Alabama, 64 percent of all 1996 entering convicts were black; in Georgia, 65 percent; Maryland, 79 percent; North Carolina, 63 percent; South Carolina, 68 percent; and Virginia, 65 percent. By 1996, in eleven states— including New Hampshire, Montana, Kansas, South Dakota, Wisconsin, Utah, and Wyoming—the percentage of black prisoners represented more than six times their racial group’s percentage of each state’s population. In Minnesota and Iowa, African American prisoners in 1996 constituted a proportion that was more than 12 times each state’s share of their respective black populations.12 The national law enforcement drive to incarcerate young blacks as a criminal class in the 1990s reached absurd dimensions. In California, for example, in 1996, African Americans in that state were statistically eleven times more likely than whites to be incarcerated in state prisons. In Texas, 2575 per every 100,000 African American residents were imprisoned, compared to 224 per 100,000 whites—a twelve-to-one ratio—and other states had even higher ratios. In New Jersey, black rates of incarceration were thirteen times higher than those of whites; in Illinois, the racial ratio was fourteen to one; Pennsylvania, sixteen to one; Wisconsin, seventeen to one; Iowa, eighteen to one; Minnesota, twenty-three to one; and in the District of Columbia, a remarkable thirty-four to one (see Table 3). To ensure that African American and Latino criminals remained behind bars as long as possible, state after state toughened requirements for the successful completion of parole. In 1984, for example, 70 percent of all former prisoners successfully completed parole, allowing them to reenter society. By 1998, only 45 percent of all former prisoners were judged to have successfully completed the requirements of parole; 42 percent were returned to prison.13 During the Clinton administration, federal and state law enforcement placed greater emphasis on the arrest and incarceration of black and Latina women, particularly nonviolent drug offenders. As a consequence, between 1990 and 1997, the female incarceration rate in the United States nearly doubled, from 31 per 100,000 to 57 per 100,000. By 1997, African American women were over eight times more likely than white women to be in prison—despite the fact that there were millions more white women who regularly used and sold illicit drugs than all abusers who were women of color combined. The vast majority of these new women convicts were the result of antidrug mandatory minimum sentencing laws, such as California’s Three Strikes law, which requires a life sentence after the third felony conviction. Between 1986 and 1996, the number of women nationally who were convicted and incarcerated on drug charges rose an astonishing 888 percent.14 The socially destructive consequences of this rise in the imprisonment of thousands of mostly nonviolent, drug-offending women on millions of African American and Latino households are not difficult to calculate. Tens of thousands of brown and black children were placed into foster care or ended up in juvenile correctional facilities. Thousands of marriages and long-term relationships between partners were destroyed; workingclass black and Latino households frequently went into ruinous debt providing legal aid and financial help to relatives and children ensnared in the legal apparatus.

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Perhaps the most terrible outrages of the racialized criminal justice system were borne by black and Latino children and young adults. In April 2000, the Federal Bureau of Investigation, the Justice Department, and six major foundations released a study of the unequal justice experienced by black and Latino juveniles throughout the United States. The statistical evidence was stunning, even to many criminologists and law enforcement officials. As of 2000, African Americans under the age of eight years made up 15 percent of their national age group but made up 26 percent of all who were arrested by police. Once placed into the juvenile justice system, African American youth and white youth experienced radically different legal experiences and outcomes, even when charged with identical crimes. Two-thirds of all whites were referred to juvenile courts, compared to less than one-third of all African American youth. By 2000, black young people made up over 40 percent of all juveniles incarcerated in the nation’s juvenile correctional facilities and represented 58 percent of all youths placed in adult prisons. For those young people who had never been to prison before, African American youth were nine times more likely than whites to be given time inside juvenile facilities. For young people charged with illicit drug-related offenses, black youth were 48 times more likely than white youth to be sentenced to serve time inside juvenile correctional institutions. The statistical probability that a rate 48 times that of whites represents a racially neutral or “color-blind” process of legal decision-making is nonexistent.15 In November 1994, conservative Republicans won majorities in both the U.S. Senate and the House of Representatives. The Clinton administration and the majority of Democrats, fearful of being pilloried by conservatives as being “weak on crime,” did little to halt the erosion of racial justice in the courts and correctional facilities. It was only in the late 1990s, as Democrats prepared for the 2000 national elections, that the dire political consequences of the War on Drugs—mandatory minimum sentences and selective prosecutions of black and brown drug offenders— became clear. In 1998, the Sentencing Project, a nonprofit research center in Washington, DC, released a study surveying the effect of racialized mass incarceration on the nation’s political system. That year, 47 states, including Washington, DC, prohibited prisoners from voting. In 32 states, former prisoners who had been released and were on parole were not permitted to vote. In ten states, including Florida, Mississippi, and Alabama, former felons were excluded from voting for the remainder of their lives. Conservatively, the Sentencing Project calculated that about four million Americans as of 1998 had lost their constitutional right to vote, either permanently or temporarily. In racial terms, roughly 13 percent of all African American males could not vote. Since from 85 to 90 percent of the black electorate supports Democratic candidates in national elections, the loss of several million potential voters represented a serious loss to the party’s electoral base. From the vantage point of civil rights organizations, the racialized processes of mass incarceration were, in effect, rolling back the effectiveness of the historic 1965 Voting Rights Act, which had been necessary to ensure that blacks, especially in the South, had access to the ballot.16 In 1996, as founding director of Columbia University’s Institute for Research in African American Studies (IRAAS), I began lecturing annually at Sing-Sing Prison

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for a master’s degree theology program for prisoners. All of the men involved in the program were either African American or Latino. As I became more involved directly in supporting educational programs for prisoners and contributing to the legal defense of political prisoners, the vast scale of the racialized processes of mass incarceration and its destructive effect on the African American community became crystal clear. In 1999, IRAAS sponsored two educational conferences, both attracting hundreds of educators, criminologists, prisoners’ rights advocates, and students, to examine the racial dimensions of the U.S. criminal justice system. Instrumental in this early stage of our work was a brilliant young student at Columbia Law School, Kristen Clarke, who subsequently worked for the U.S. Justice Department. One of these conferences, “Education, Not Incarceration,” was held in a Harlem high school and involved collaboration with over one dozen community-based organizations. IRAAS’s newly established quarterly publication, Souls: A Critical Journal of Black Politics, Culture and Society, released an edited volume of papers largely generated by those conferences in its winter 2000 issue. In 2001, I proposed to the Open Society Institute (George Soros Foundation) a public policy and research project based at IRAAS, which was then called the Africana Criminal Justice Project (ACJP). Our larger objective was to develop a subfield within African American Studies that would interrogate the interconnections between race, crime, and justice. The Open Society Institute generously agreed to fund the initial stages of the project from 2002 to 2004. As the project evolved, we identified four central goals: first, to develop new scholarship on criminal justice issues within African American Studies and to promote collaboration and dialogue between Black Studies scholars, civil rights organizations, legal studies scholars, and prisoners’ rights groups; second, to produce scholarly research on the effect of the criminal justice system on African American, Latino, low-income, and immigrant communities; third, to create new academic courses, educational resources, and textbooks on these subjects; and fourth, to explore the long-term consequences of “racialization” by the criminal justice system. In the pursuit of these objectives, ACJP was extremely fortunate to attract the invaluable leadership and contributions of a series of dedicated, young black intellectuals. From 2002 until 2004, Dr. Geoff Ward, currently a Professor of Sociology at Northeastern University, served as ACJP Coordinator. He was ably followed by Laurent Alfred, who had recently completed his law degree at Yale University and who directed the project in 2004–06. Since the fall of 2006, the ACJP director has been Dr. Keesha Middlemass, an Assistant Professor of Political Science at Rutgers University–Newark. Under their leadership, ACJP organized two major national conferences: “Africana Studies Against Criminal Injustice: Research, Education, Action,” in April 2003, and “Criminally Unjust: Young People and the Crisis of Mass Incarceration,” in April 2005. Also, in November 2004, ACJP hosted a public symposium, “Chanting Down the Walls,” that focused on ways that the arts could be employed to critique racial inequality within the criminal justice system. Souls published three edited volumes featuring conference papers and solicited research articles on race, crime, and justice in its fall 2003, winter 2004, and spring 2006 issues. With the assistance of Dr. Mio Matsumoto, in 2003–04, ACJP compiled a comprehensive, annotated bibliography

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of several hundred documents—including archival letters, scholarly articles, and papers—by African American intellectuals and writers dating back to the midnineteenth century on topics related to race, crime, and justice. The public recognition of ACJP’s efforts in this field has been one of the most deeply gratifying experiences I have had during my three-decade-long career as a university teacher and scholar. One of our most exciting and innovative efforts, initiated by Laurent Alfred in 2004, involved the development of an African American Studies seminar inside New York City’s Riker’s Correctional Facility high school, mentoring young African American and Latino incarcerated males. The seminar uses spokenword or hip-hop poetry as a vehicle for minority juveniles to express their experiences and feelings about being incarcerated and the effect the criminal justice system has had on their lives. By the initial years of the twenty-first century, there was growing recognition among broad sectors of the American public that the two-decade-long campaigns promoting the mandatory minimum sentences; the eradication of educational, drug treatment, and vocational training programs inside prisons; and other repressive policies were counterproductive and wasteful, both in terms of dollars and in human lives. One reference illustrating this are the results from several opinion polls, respectively from 1994–99 and 2000–01. In a 1994 Gallup poll, 42 percent of Americans agreed with the statement, “We need tougher approaches to crime,” including longer prison sentences, additional police, and restrictive paroles. A June 1995 Gallup poll also found that by a 55 to 38 percent majority, most Americans were convinced that “mandatory-minimum sentencing laws” were a “good idea.” By September 2000, however, a plurality of Americans polled, 45–38 percent, believed that “judges should be able to decide” the length of sentences in felony conviction cases. An overwhelming majority of Americans polled in 2001, 70 percent, had concluded that the celebrated War on Drugs had been “more of a failure” than a success.17 But the years of demonizing and stigmatizing African American youth as a “criminal class” left an enduring mark on millions of white Americans with regard to their comprehension of the necessary measures required to restore some measure of racial fairness—much less “justice”—to the American criminal justice system. According to a national survey conducted by Peter D. Hart Associates in September 2001, African Americans surveyed overwhelmingly supported “prevent, education and youth programs” (38 percent) and “rehabilitation, education and job training programs” for prisoners (34 percent) as the major elements for “how to deal with crime.” Latinos somewhat agreed, but by a smaller margin: 46 percent agreed with “prevention, education and youth programs,” but only 13 percent favored “rehabilitation” for prisoners. By contrast, only 34 percent of whites supported “prevention, education and youth programs,” and 15 percent endorsed “rehabilitation.” Another 42 percent of all whites surveyed believed that “more police on the streets,” was the best method for “how to deal with crime.” Another 22 percent of whites (compared to only 10 percent of blacks polled) favored “more punishment” and “longer prison sentences.” The racial divide was the major demarcation in regards to how the American public perceived “alternatives to incarceration.” For example, on the issue of whether juvenile offenders should be placed “in community prevention programs instead of

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prisons,” 92 percent of African Americans but only 84 percent of whites agreed. On the sentencing of nonviolent offenders to “community service and probation” instead of prisons, 82 percent of blacks and 73 percent of whites surveyed concurred. Regarding the necessity to “reduce prison sentences for nonviolent offenders,” 74 percent of African American agreed, but only 60 percent of white Americans were supportive.18 In short, despite the fact that tens of millions of white Americans had consumed illicit drugs, and that even with so-called inner-city drugs like crack cocaine white users outnumbered blacks by a margin of nearly three to one, most white Americans remained convinced that the evils of illicit drugs and the criminal underworld they engendered were largely the province of African Americans. So long as this widespread, racial denial of reality existed among millions of whites, the prospects for fundamental reforms inside the criminal justice system remained bleak. In The Great Wells of Democracy: The Meaning of Race in American Life (2002), I argued that the racialized criminal justice system and the processes of mass incarceration had created the institutional context for a “New Racial Domain,” a successor regime to the institutions of slavery, Jim Crow segregation, and ghettoization.19 I modified that thesis in Living Black History (2006), suggesting that the racialized criminal justice apparatus formed one of three pillars in the New Racial Domain of race-neutral, “color-blind inequality.” The second pillar, mass unemployment, was structural, produced by neoliberal public policies of abandoning the poor and by the pervasiveness of racial discrimination in urban labor markets, in which many black and Latino youth and young adults found it almost impossible to obtain gainful employment at living wages. The third institutional pillar, mass disenfranchisement, eliminated millions of blacks from electoral politics and civil society and, critically importantly, had the effect of reducing the Democratic Party’s black voter bloc.20 Under the ideological hegemony of neoliberalism, “racism” seeks to present itself devoid of racial animus. The purging of millions of black voters from elections cannot appear to be inspired by racial intent. Therefore, under the New Racial Domain, black subordination, disenfranchisement, and criminal stigmatization are presented as somehow attributable to the behavioral shortcomings and failures of African Americans themselves. The challenge to Black Studies as a growing field of scholarship, and critical public policy analysis, is to dissect these institutional processes of racialized inequality, revealing them for what they are. Through education and practical public engagement, our scholarship must help to fashion democratic alternatives to how race, crime, and justice are understood. This edited volume by Palgrave Macmillan, Racializing Justice, Disenfranchising Lives, which is coedited by ACJP director Dr. Keesha Middlemass and Souls managing editor Ian Steinberg, is the culmination of our efforts over nearly a decade. Because the processes of racialization transcend the particularity of the black American historical experience, extending in parallel ways to those of many Latinos, American Indians, Third World immigrants, Muslims, and others defined outside of the racial rubric “non-Hispanic white,” ACJP has been redefined as the Anti-Racist Criminal Justice Project. America has never, in its long history, experienced a truly antiracist criminal justice and penal system. Is it possible to imagine such a system, especially in the aftermath of the passage of the Patriot Act and other repressive

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legislation in the aftermath of 9/11? One fragile hope that nurtures my political optimism is the recognition of the impending social crisis that confronts this nation as a result of its destructive policies of mass incarceration. As the Washington, DC–based Sentencing Project observed back in 1998, only 18 percent of all prisoners with substance abuse problems received drug treatment while they were incarcerated. Roughly 16 percent of all prisoners suffer from various types of mental illness, and only a small percentage receive treatment while behind bars. The median educational level of released prisoners—the eleventh grade—makes most incapable of securing stable, long-term employment. Most significantly, despite the massive construction of new prison facilities in the 1980s and 1990s, over 600,000 prisoners as of 1998 were being released annually—approximately 1,600 women and men every day.21 Roughly six million Americans on any given day in 2007 find themselves within the U.S. criminal justice apparatus—in jail or prison, on parole, on probation, or awaiting trial. Over two million Americans are confined inside correctional facilities. For the preservation of democracy and a civil society, the task of implementing major reforms within every aspect of policing, trials, incarceration, and prisoner reentry is a great national responsibility that each of us share. What would an antiracist criminal justice strategy look like for the United States? Two prime objectives would be restorative justice and building our democratic, civic capacity: To renew, from the margins, the aspirations and energies of millions of Americans who are routinely denied employment, public housing, college loans, and other opportunities because of prior felony convictions; to rebuild, within our political process, the involvement and confidence of millions of Americans who are now unfairly excluded from exercising their democratic constitutional rights to vote; to reenergize the power of millions of unemployed and underemployed former prisoners back into the economy, in part by establishing effective vocational training and educational programs inside every correctional facility and by eliminating the state-sanctioned lists of prohibited jobs for which exprisoners are denied the right to apply; and to revive by civic engagement the latent leadership and talents of millions of Americans who have been victimized by the New Racial Domain, whether through unemployment, unjust incarceration, or disenfranchisement. Restorative justice requires a therapeutic approach to jurisprudence, based on the availability of rehabilitation programs and constructive and creative alternatives that could begin the process of redirecting hundreds of thousands of nonviolent and drug-related offenders out of maximumsecurity institutions. A truly antiracist approach to crime would emphasize “neighborhood courts,” youth prevention programs, drug rehabilitation services, and nonconfrontational policing strategies to most local crime. The chapters presented in Racializing Justice, Disenfranchising Lives each present very different dimensions of the problems of race, crime, and justice, but what underscores each of them is the intellectual conviction that “justice” cannot exist whenever and wherever institutional racism, the systemic inequality of an entire people justified by their race, endures. NOTES 1. Human Rights Watch, “Punishment and Prejudice: Racial Disparities in the War on Drugs,” Human Rights Watch 12, no. 2 (2000): 3.

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2. David Harvey, A Brief History of Neoliberalism (New York: Oxford University Press, 2005), 48, 52. 3. Human Rights Watch, “Punishment and Prejudice,” 4. 4. Ibid, 8. 5. “Table 17. ‘Drug Use Population Estimates for 1998,’ compiled by the Substance and Mental Health Service Administration,” ibid. 6. “Table 2. ‘Marijuana Offenders as Proportion of All Drug Admissions,’” compiled from the 1996 data of the National Corrections Reporting Program, ibid. 7. Ibid, 20–21. 8. Ibid, 20. 9. Correctional Association of New York, and the Justice Policy Institute. 10. Ibid. 11. The Sentencing Project, Prisoners Re-Entering the Community (Washington, DC: The Sentencing Project, 2002). 12. Human Rights Watch, “Punishment and Prejudice,” 8–9. 13. Jeremy Travis, Amy L. Solomon, and Michelle Waul, From Prison to Home: The Dimensions and Consequences of Prisoner Re-Entry (Washington, DC: Justice Policy Center, Urban Institute, 2001), 22. 14. Human Rights Watch, “Punishment and Prejudice,” 24. 15. Manning Marable, The Great Wells of Democracy: The Meaning of Race in American Life (New York: Basic Civitas, 2002). 16. Ibid. 17. Peter D. Hart Associates, “The New Politics of Criminal Justice: Summary of Findings,” January 2002. Data in the 2001 poll were compiled by Peter D. Hart Research Associates on behalf of the Open Society Institute. From September 6 to 17, 2001, Hart Research conducted a national telephone survey of 1056 adults that included 101 black Americans and 151 Latinos. The majority of interviews, 863, were conducted before the September 11, 2001, terrorist attacks. 18. Ibid. 19. Marable, The Great Wells. 20. Marable, Living Black History: How Reimagining the African-American Past Can Remake America’s Racial Future (New York: Basic Civitas, 2006). 21. The Sentencing Project, “Prisoners Re-Entering.”

Table 1 Comparison of Drug Use and Arrests by Race, 1979–98 Year

1979 1985 1991 1995 1998

Black Percentage of Current Drug Users 10.8% 12.4% 15.3% 16.2% 16.9%

Percentage of Drug Arrests 21.8% 30% 41% 36.9% 37.3%

White Percentage of Percentage of Current Drug Users Drug Arrests 87.8% 86.6% 83.9% 82.7% 82%

76.7% 68.9% 59.4% 62.1% 61.5%

Cited in Human Rights Watch, “Punishment and Prejudice: Racial Disparities in the War on Drugs,” Human Rights Watch 12, no. 2 (May 2000): Table 18.

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Table 2 Percentage of New Admissions to State Prisons by Race (1996 Data) National

Black 51%

White 47%

Selected State Percentages Alabama Florida Georgia Illinois Louisiana Maryland Mississippi New Jersey New York North Carolina South Carolina Virginia

Black 64% 52% 65% 74% 73% 79% 70% 72% 63% 63% 68% 65%

White 36% 48% 34% 26% 27% 20% 29% 28% 35% 35% 31% 34%

Data compiled by the National Corrections Reporting Program, cited in Human Rights Watch, “Punishment and Prejudice: Racial Disparities in the War on Drugs,” Human Rights Watch 12, no. 2 (May 2000): Table 2.

Table 3 Rates of Incarceration to State Prisons by Race, per 100,000, Nationally and in Selected States, 1996 National

Black White Black:White Ratio 1,547 188 8:1 Selected States Black White Black:White Ratio District of Columbia 2,720 81 34:1 Minnesota 1,383 59 23:1 Iowa 2,818 159 18:1 Wisconsin 2,210 131 17:1 Pennsylvania 1,681 108 16:1 Illinois 1,395 98 14:1 New Jersey 1,526 115 13:1 Texas 2,575 224 12:1 California 1,909 168 11:1 ------------------------------------------------------Idaho 951 265 4:1 Hawaii 579 219 3:1 Vermont 451 178 3:1 Data of the Bureau of Justice Statistics, and the U.S. Bureau of the Census, quoted in Human Rights Watch, “Punishment and Prejudice: Racial Disparities in the War on Drugs,” Human Rights Watch 12, no. 2 (May 2000): Table 3.

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P A R T

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THE CRIMINAL JUSTICE SYSTEM AND THE NEW RACIAL DOMAIN

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THE HYPERCRIMINALIZATION OF BLACK AND LATINO MALE YOUTH IN THE ERA OF MASS INCARCERATION Victor M. Rios

This chapter discusses how black and Latino youth labeled “deviant” are affected by criminalization after coming in contact with the juvenile justice system. The findings are based on ethnographic interviews I conducted in the San Francisco Bay Area from 2002 to 2005. From these data, I argue that black and Latino youth are further stigmatized and “hypercriminalized” on entering the juvenile justice system even when the majority are arrested for nonviolent offenses. Nonviolent juvenile offenders thus experience the full force of direct and indirect punishment and criminalization traditionally aimed at violent offenders. Furthermore, in a time when punitive crime control measures have drastically increased, youth of color experience this hypercriminalization not only from criminal justice institutions but also from non–criminal justice structures traditionally intended to nurture: the school, the family, and the community center. Ultimately, in the era of mass incarceration, a “youth control complex” created by a network of racialized criminalization and punishment deployed from various institutions of control and socialization has formed to manage, control, and incapacitate black and Latino youth. INCARCERALIZATION AS A YOUTH OF COLOR PHENOMENON In the era of mass incarceration, black and Latino youth face a coming-of-age crisis determined by criminalization and incarceralization. The majority of black and Latino inmates are youth; almost three-quarters of all black and Latino jail and prison inmates in the United States are between the ages of twenty and thirty-nine years. As of 2003, 12 percent of all black males in their twenties were in prison or jail;

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almost 4 percent of Latinos and only 1.5 percent of whites in their twenties were incarcerated (Paige 2004). One in three African American youth ages twenty and twenty-nine years are incarcerated or on probation or parole (Paige 2004).1 Although Latino youth do not have the outrageous incarceration rates that black youth contend with, they too are disproportionately confined, especially in areas with large Latino populations. For example, as of 2002, in California, Latino youth represented 36 percent of the state’s youth population; however, they made up close to 60 percent of the state’s juvenile detainees (Villaruel and Walker 2002); Black youth made up roughly 7.8 percent of the state’s population, yet they represented almost 30 percent of juvenile detainees (Males and Macallier 2000). In black and Latino communities, mass incarceration has become a youth phenomenon. In California, youth of color are 2.5 times more likely than white kids to be tried as adults and 8.3 times more likely to be incarcerated by adult courts. Ninety-five percent of all juveniles sent to adult court are youth of color. In Los Angeles, a stunning 91 percent of all cases in the adult criminal court involve youth (Males and Macallier 2000). Recent punitive expansion and the material effects of mass incarceration have come to affect some of the youngest populations in black and Latino communities. The intent of this chapter is to account for the social effects of mass incarceration and criminalization on young males of color—the populations most affected by these systems that generate and exacerbate social misery. These young adult deviants do not become so on their eighteenth birthday; rather, they are systematically constructed as criminals and face the wrath of the penal state and criminalization as early as eight years of age (e.g., see Ferguson 2000). Scholars have argued that in the contemporary historical bloc, punishment and incarceralization are at the center of racial inequality and social misery (Castells 1997; Parenti 2000; Wacquant 2002; Davis 2003). Expanding on this argument, this chapter demonstrates that spillover from the ever-expanding power and punitiveness of criminal justice policies and practices affect every member of poor racialized communities in multiple ways, and they affect urban youth of color in particular. Some scholars have begun to analyze this structure of punishment that extends its tentacles beyond the offender and systematically damages the transgressor’s family, friends, and community. Scholars have termed this spillover effect the “collateral consequences of mass imprisonment” (Chesney-Lind and Mauer 2004). These scholars have argued that punishment not only affects the confined individual but also expands to affect family members and the inmate’s community. Building on this argument, I demonstrate how the punitive expansion of the state has created a new system of social relations that stigmatize and criminalize poor youth of color on an everyday basis. Mass imprisonment and the cultural, political, and economic arrangements that accompany it have had a devastating social effect on young male adolescents in the inner city, specifically black and Latino male youth. Furthermore, the lives of black and Latino youth who are labeled “deviant” are enforced by institutional entities that treat them as serious criminal threats ready to commit savage acts of violence even if they have only been arrested for drug possession or status offenses. This collateral consequence of mass imprisonment has brought about a network of criminalization,

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surveillance, and punishment that serves as a main socializing and control agent for black and Latino youth who have been labeled “deviant.” THE RESEARCH CONTEXT: STUDYING CRIMINALIZED EXPERIENCES The chapter is based on forty in-depth, semistructured “ethnographic interviews” (Spradley 1979) that I conducted in Oakland, San Francisco, and Berkeley, California with black and Latino youth who were between fourteen and eighteen years old. Each of these cities has unique social, cultural, economic, and political landscapes. However, they are part of a larger metropolis—the San Francisco Bay Area—in which extreme racial disparities in family incomes, disproportionate incarceration rates by race, and major disparities in education, housing, transportation, and employment between communities of color and white communities exist. For example, as of 2002 in Alameda County (where Oakland and Berkeley are located), non-Hispanic whites held higher-paying, higher-skill jobs than did, and they held 68 percent of all executive, administrative, and managerial positions. Minorities represented 42 percent of Alameda County’s work force but made up 60 percent of service sector jobs.2 The Bay Area has the highest general unemployment rate in the state, at 8 percent, with people of color making up the bulk of those who are unemployed.3 This number represents the general adult population. Some community workers and probation officers I have talked to estimate the unemployment rate for young males of color between ages eighteen and thirty to be over 30 percent. In each city, I grounded myself in a specific community setting in which black and Latino youth were mutually accessible. In the past twenty years, all three cities’ traditionally black communities have seen a huge increase in Latino populations, which transformed them into combined black and Latino communities. In Berkeley and San Francisco, I conducted research that was based at youth development community centers (Berkeley Youth Alternatives and Real Alternatives Project). In Oakland I conducted research based at a youth-led organization that focused on political mobilization in the community (OLLIN). I asked youth development workers, youth leaders, and teachers to help identify and recruit “criminalized” youth.4 After recruiting a first round of youth, I asked them to connect me with youth who had a prior arrest. This allowed me to interview youth from similar environments with similar experiences to compare differences in personal attitudes, experiences, and ethnicity. After recruiting the youth, I followed them to their schools, homes, juvenile court appearances, and leisure spaces. Half of the youth I interviewed were black (twenty), and the other half were Latino (twenty). I wanted to contrast and compare the experiences of both racialized groups. Were their experiences different even though they lived and grew up in similar environments? If the youth I observed and interviewed, black or Latino, lived in the same neighborhoods and attended the same schools, were they criminalized in similar ways? Did they commit similar crimes? Did they have the same attitudes about the criminal justice system? I recruited a control group of ten youth who had never been arrested but who lived in the same area and associated with the juveniles who had been arrested.

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Although these youth were at risk and often participated in negative behaviors, they were considered to be “good kids” by their peers. This control group would show the difference in criminalization between those arrested and those who had not been arrested but who had been identified in the community as risks. Six (out of thirty) of the arrested youth were arrested between the ages of twelve and fourteen years; seventeen of them were arrested at age fifteen; and seven had been arrested between the ages of sixteen and seventeen years. For most (twenty-eight of thirty), all arrests happened for nonviolent acts such as vandalism, petty theft, and burglary. Out of the snowball sample of youth whom I recruited, only two arrests had taken place for violent crimes against other youth. A limitation to this study was that I did not recruit many violent offenders. However, the sample seems representative of juvenile delinquency in the inner city: Most youth are arrested for nonviolent offenses but are managed as a serious criminal risk despite their status. Of the two violent offenders whom I studied, Tyrone had stabbed another youth and Jose had hit another youth in the head with a baseball bat. Their initial arrests and experiences were similar to the youth who had not committed acts of violence. The violent youth were arrested multiple times for nonviolent offenses before their first violent offense. Both Tyrone and Jose ended up incarcerated for long periods of time after I conducted my interviews with them. Jose would later get arrested for shooting another youth in the leg. As of the fall of 2005 he was on trial facing from five to twenty years in prison. Tyrone ended up being arrested for assaulting a police officer. He was sentenced to fourteen months at the county jail. For the twenty-eight youth who were arrested for nonviolent crimes, their experiences with the justice system were similar: They went to juvenile hall from between one and sixty days, they were released on a monitoring device or on probation, and they were given specific conditions of probation—to go directly from school to home, not to associate with their former peers, and not to hang out on the streets. Ten of them ended up with a monitoring device shackled to their ankle that would beep and alert the probation department if the youth wondered away from their homes. GOVERNED AS CRIMINALS If social structures are visible and identifiable through the everyday commonsense expressions and interactions that individuals in society have with one another (Garfinkel 1967), then the “youth control complex” became visible to me as I interviewed and observed my subjects in their everyday interactions and conversations about criminalization. However, beyond simply examining my subjects as agents whose behavioral patterns I could observe to understand larger social structures, I took seriously the experience and thinking that youth brought to the table. Taking the voice of youth seriously allowed me to conduct my research “from the ground up.” From this perspective, I followed the logic and structure of the social worlds the youth inhabited. This approach led me to understand how the interactions that youth had with individuals who criminalized them were used to make sense of their social world.

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The findings show that youth not only felt the direct effects of incarceration and police repression but also experience what Jonathan Simon (1997) calls “governance through crime.” That is, the everyday effect that citizens experience from encounters with a society obsessed with surveillance, security, and punitive penal practices. For Simon, in a society that over the past thirty years has increased its prison population over fivefold and that continues to generate draconian punitive sentencing, it is not only the criminal that suffers from the hyperpunitiveness but also the everyday lawabiding citizen. He argues that in today’s society, politicians have heavily “governed through crime.” For Simon, crime has become the central tool for governing the everyday citizen, even if he or she has never committed a crime. Crime and punishment have been prioritized in the United States to influence the actions of the everyday citizen. It is not that the United States has a crisis of crime in its inner cities but, rather, that there is a crisis of “governance,” both in the public and private sphere. This crisis of governance stems not from an increase in crime but from the failure of traditional institutions of governance like the welfare state, labor market, and education system and from the state’s inability to provide social and economic security (Simon 1997). The youth in this study are youth who have been affected by the decline of the welfare state and the expansion of the criminal justice system. As the youth attempted to deal with this social dislocation—this disorientation, in which they could not expect any help or support from the government, and in which the government had become an abusive step-parent figure, beating its children and throwing them in a room with no windows nor doors—they began to lose hope in the government and in themselves. The youth felt that on an everyday level, their lives were being defined and controlled through discourses and practices of crime and policies related to crime even when they were not committing crimes. As I continued to interview and observe them, I realized that even if they did not want to commit crimes, be seen as delinquent, or act like “thugs,” they were already seen as suspects by many in the community. Because of this, they developed identities that they often wished they could renounce. They began to resist the community, and as they resisted they began to embrace their own criminalization. MULTISPATIAL CRIMINALIZATION Many of the youth in the study talked about being criminalized in multidimensional layers and in multiple social settings. Beyond the criminal justice system and its bureaucrats, they experienced the effects of criminalization in other significant spaces: the street, school, businesses, and even their homes. They compared encounters with the police, probation officers, and prosecutors with interactions they had with school administrators and teachers who placed them in detention rooms, community centers that attempted to exorcise their criminality, and even parents who felt ashamed or dishonored and relinquished their relationship with their own children all together. For the youth, their experience in each of these institutional settings had one thing in common: being treated as a criminal.

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Although there are many institutions that criminalize inner-city youth, I observed the ones that youth themselves suggested. On the criminal justice side, I studied how the youth interacted with probation officers. On the youth development side, I examined the family and the community center. I chose to look at these institutions because preliminary interviews informed me that community centers and families were central concerns for youth in terms of being criminalized. In addition, these two institutions have traditionally been settings in which nurturing has taken place. In the youths’ own accounts, it was these institutions that held a firm grip on their life chances. Often their choices were limited by the attitudes and policies that the institutions had toward them. Although it was not surprising to hear that probation officers had participated in criminalizing youth in damaging ways—what I call hypercriminalization—it was shocking to discover that youth felt criminalized in damaging ways by community centers and even by their own families. It seemed, in the accounts of the youth, that these three institutions were collaborating to form a system that degraded and dishonored them on an everyday basis. To understand this process of hypercriminalization, the lives of the youth I studied had to be examined. What follows are in-depth accounts of youth who represent the experiences of most of the youth I studied. GROWING UP A CRIMINAL Jose

Jose is a seventeen-year-old gang-involved youth from Berkeley with whom I have worked since he was thirteen years old. He has been in and out of trouble since sixth grade and has been to juvenile hall four times. From an early age, Jose has experienced policing and surveillance from both criminal justice and non–criminal justice institutions. Over time, Jose has come to understand the combined effect of being criminalized from multiple directions as creating a single system out to dehumanize him. He explains, Man, it’s like every day teachers gotta sweat me, police gotta pocket check me, Mom’s gotta trip on me, and my P.O.’s gotta stress me. . . . It’s like having a zookeeper watching us at all times. We walk home and we see them [probation officers and police], we shoot some hoops and we see them, we take a shit at school, and we see them.5

Jose is describing an all-too-common phenomenon of penal practices, traditionally carried out by probation and police officers, entering other social and private spaces including recreation (community centers), schools, and even the family. Jose comes from a poor, single-mother household. He has a vivid memory of the deviance he saw committed around him and that he committed as early as age nine years. He remembers seeing fights on the way from school to home at least once a week. When asked how many crimes, of all types, he remembers seeing on a daily basis, he responds:

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“Shit! I can’t even count. Crime, I see it everyday, all day. It’s like if you try to hide from it, it will find you anyway.”6 Jose also remembers his first act of deviance: The first time, I was in third grade. I had set the bathroom garbage can on fire. We ran away, and they caught us and handcuffed us. . . . I was just trying to do something funny. Police came and arrested me and my friends. They only had a pair of handcuffs and they handcuffed me and my friend together. This is the first time I got arrested. I also flunked that year.7

Jose and twenty-six of the thirty previously arrested youth I interviewed report that teachers at school have direct contact with the school officer and their probation officers. After school, when Jose attends the local youth development community center to participate in leisure activities, he meets with his probation officer, who is also stationed at the community center. His mother is also forced to deal with the probation officer because he maintains direct contact with her and has begun to influence the way she parents. Jose explains: My Mom’s started trippin’ on me like never before, you feel me? She started telling me to not wear baggy pants and to stop talking the way I did. I asked her who told her these things since she never tripped before and she told me that my probation officer had told her to tell me this stuff. . . . I got mad and I left and went to kick it at BYA [the community center]. When I got there my P.O. was there hanging out. I was mad at him so I left. I went to the park, and the police were there trying to fuck with me too.8

For Jose and most of the other youth, their experience of being watched, managed, and treated as a criminal began at a young age and became exacerbated after their first offense, which in most cases was a misdemeanor. Their minor transgression had branded them with a seal that would make their one-time criminal act into a permanent criminal identity. For example, a few weeks after his first arrest for carrying a $10 bag of marijuana, Jose began to realize that everyone in the community knew about his arrest and probation. Beginning at home and ending at the local community program, adults now treated him differently. Jose began to feel watched, police began to randomly stop and search him, his teachers would threaten him with calling his probation officer if he disobeyed at school, and his mother constantly reminded him that he would end up in jail if he misbehaved. After their first offense, most of the youth in the study were labeled and treated as criminals not only by police, courts, and probation but also by teachers, community centers, and even parents. The permanent “criminal” signifier began when the youth was assigned a probation officer. The presence of the probation officer served the role of informing the entire community that the youth had permutated into a risk and that he was now to be monitored and controlled by an authority figure—the probation officer—assigned by the state.

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PROBATION The probation officer served the purpose of punishing the youth by branding him a criminal in front of the rest of the community and by marking his territory in all settings in which the youth was a participant. Community centers made office space available for probation officers to manage youth from a location closer to their homes. Parents constantly interact with and often are chastised and influenced by probation officers. Teachers have direct contact with probation officers and inform them when the youth misbehave. At the end of their initial arrest, all youth were given some sort of surveillance program. Most youth (twenty-four of thirty) received a probation officer with whom they had to meet from once a week to once a month; the rest were given probation without a formal relationship. The meetings would often take place at neighborhood community centers located near the youth’s homes. Out of twenty-four youth who had a probation officer, eighteen of them met with the officers at local community centers or at school. The eighteen youth who met with probation officers in their local community demonstrated a feeling that others perceived them differently than those youth who checked in with probation officers at the county probation office. Youth spoke of feeling humiliated because everyone in the community knew that they were on probation. They felt like criminals even if they were trying to improve their lives. However, probation did keep a lot of the youth from committing further crime. From the perspective of juvenile probation and many of the school authorities, the point of the probation officer being present at community centers and schools was to make sure that the youth who were on probation followed all the rules and did not commit another crime. For the most part, this goal seemed to work well with the youth that I interviewed; however, after the youth were released from probation, their chances of being rearrested increased drastically. The youth believed that one of the biggest changes they faced after being released was the overwhelming presence of their probation officers. Youth went from having little direct supervision and control for most of their lives to having a disruptive control force in their lives waiting for them to, as one of the youth put it, “fuck up.” In being present in all aspects of the youths’ lives, probation officers could potentially have a positive effect on the youth’s rehabilitation and reintegration into society. Often, the youth did follow the strict orders of the probation officer, but only in the direct presence of the officer. In the accounts of the youth, at first probation officers helped them “stay in line,” but later they would become hindrances in their recovery. The probation officer served as a direct threat and locus of control for the youth only while the youth maintained direct contact with him or her. As soon as youth were taken off their intensive probation programs, like electronic monitoring, weekly meetings, and home arrest, they began to commit acts that further criminalized them and often led to a second arrest. Youth often expressed that being contained, monitored, and threatened to function normally for so long made them unable to control themselves and operate normally in society when the direct authoritative treatment was removed. Youth were being taught to live normally in

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society under forceful supervision and sanctions from the state. When the absolute force was removed, so was the positive behavior of the youth. Ronny

Ronny’s day-to-day experience provides a deeper insight to processes of hypercriminalization experienced by youth. Ronny is a sixteen-year-old African American male from Berkeley. He is currently on probation and is mandated to attend an “anger management” program at Berkeley Youth Alternatives for defying his probation officer. For school he is attending Independent Study, a program in which students complete courses at their own pace without attending class. On a typical day, Ronny wakes up at about 10:00 or 11:00 AM and walks to Berkeley High School, arriving there at lunch time. Because Berkeley High School is an open campus, students fill up the local shops and restaurants in the main avenue, Shattuck. Between 11:45 AM and 12:45 PM, swarms of youth travel the streets surrounding the school. For Ronny, this is a time to catch up with both friends and foes as they walk from the school to the street. Ronny usually hangs out at a corner near the main avenue and waits for his friends to meet him there. When they arrive, he either stands there with them or catches up on events that have occurred in school or the community. If Ronny sees one of his many rivals, he confronts them and sometimes engages them in a fist fight. It is during this time of day that Ronny is very likely to get arrested. Twice he has been booked by police for fighting during the lunch hour. After the lunch hour adventure at Berkeley High School, Ronny walks to the Independent Study Office, where he turns in work and receives a new packet. Sometimes Ronny goes to this office even if he has not done any work to turn in or does not have an appointment for that day. He explains that he is usually bored by the afternoon and wants a place to hang out. He figures that the teachers might take him in and help him with his assignments; however, most of the time the teachers are not there or are busy with other youth. Ronny then walks toward BYA and waits outside of the center until 3:30 PM, when they open the doors to youth. There he plays basketball with friends and takes his anger management class, meets with his probation officer, or talks with center staff or counselor about his progress. He reports that, like his teachers, the community center staff often report him to his probation officer if he misbehaves at the center. The center closes at 8:00 PM. This is when Ronny walks to the park that sits adjacent to the community center. Often his friends meet there to play more basketball, smoke and drink, and talk about their lives until about 10:00 PM. This is when most youth go home. Ronny walks home, checks in with his grandmother, and sits on his front steps with a few friends who stay out late as well. Most of the time, Ronny’s evenings are fairly mundane, but occasionally it is after the end of the program that Ronny and his friends fight with rivals, conduct drug deals, or break into cars. Two of Ronny’s arrests have taken place after 8:00 PM. A few weeks after starting his probation program, Ronny began to realize that even his own family had begun to question his innocence. Ronny explains:

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My grandma keeps asking me about when I’m gonna get arrested again. She thinks just ’cause I went in before, I will go in again. . . . [A]t school my teachers talk about calling the cop again to take me away . . . cop keeps checking up on me. He’s always at the park making sure I don’t get in trouble again . . . my P.O. is always knocking on my door trying to talk shit to me . . . even at BYA the staff treat me like I’m a fuck up again.9

Over time, Ronny and other youth I interviewed normalize being treated as criminals by most adult members in their community. They see it as an everyday way of life that they have to cope with and learn to navigate. As in Pierre Bourdieu’s Symbolic Violence (1992), where the subject internalizes and perpetuates his own oppression, the youth internalize their criminalization and respond by “acting bad.” Both resistance and expectations of negative encounters with school and justice authorities become normalized as routine features of the environments in which these youth live and navigate. For the state to succeed in criminalizing youth, it has to make the youth believe that surveillance, brutality, crime, and criminalization are part of everyday life; it has to convince the subject that he indeed is a criminal, or in the words of the youth, a thug. In this way, the dominated group accepts as legitimate its own condition of domination (Bourdieu and Wacquant 1992). The “bad kids” internalize their criminalization as a normal part of their everyday lives; hence, youth who are criminalized react to criminalization through criminality. Ronny concludes: Shit don’t change. It doesn’t matter where I go, I’m seen as a criminal. I just say, if you are gonna treat me as a criminal than I’m gonna treat you like I am one you, feel me? I’m gonna make you shake so that you can say that there is a reason for calling me a criminal. . . . I grew up knowing that I had to show these fools [adults who criminalize youth] that I wasn’t going to take their shit. I started to act like a thug even if I wasn’t one . . . part of it was me trying to be hard, the other part was them treating me like a criminal.10

At an early age Ronny developed an identity that made him act aggressively toward other youth. He talks about being forced to learn to interact with peers by “acting hard” around them. When I asked him what he remembered most about growing up around peers who were involved in delinquent behavior, he said that he had to pretend to be bad to get respect, even if he did not want to be bad. Ronny was, as Elijah Anderson (1994) has explained, learning to “code switch.” To survive the order of the streets and, as I explain, to resist the order of hypercriminalization, Ronny was acting “bad” even if deep inside he simply wanted to do good. The youth have developed strategies of survival in order to cope with the violence of the state and other institutions that criminalize and punish them. However, as Paul Willis (1977) has demonstrated, in resisting their oppression, working-class youth often dig themselves deeper into a hole, perpetuating their subordinate status in society. This was the case with the youth in this study.

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Junior

This theme continued to play out with many of the youth I interviewed. The youth knew they wanted to improve their lives and follow their probation program; however, they were often influenced in other directions. Junior, a fifteen-year-old Latino from San Francisco, asked his probation officer for guidance when he came to the conclusion that he wanted to change this negative behavior and follow his instinct: I just wanted to start doing better so I told my probation officer to help me. He said that it’s easy—I had to stay away from all those crazy kids I hung around with. He also told me that if I got caught with them I would go back to jail. He told me to tell them that I would go to jail if I talked to them but they didn’t believe me. . . . [H]e told me “it’s common sense,” but he’s not the one that has to walk on the street.11

Besides facing pressure from peers, the youth had to contend with the pressure of adults who were cynical about their ability to do well. Youth often reported that instead of finding ways to support them through rehabilitation and academic and community support, adults from various institutions in the community managed the youth as risks rather than creating a support program. Junior reported that teachers at his school had direct contact with the school officer and his probation officer. When Junior got in trouble, in the classroom his teacher filled out a card from the school’s police officer. The police officer would check in with the teacher every afternoon, and if Junior had a mark on his card, the officer would come and make threats, handcuff him, or throw him in the back seat of the police car for long periods of time in front of his peers at the school. The constant surveillance and threats imposed by the police officer at his school made him feel that he was “doing time” in jail while at school. For Junior, school was like jail in the sense that the minute he stepped into it he was under strict supervision and faced the threat of severe punishment with every move he made. After school Junior would walk to the local community center to “hang out” and meet with his probation officer, who was stationed at the community center. Junior would walk into the center, greet the staff, check out a basketball, and play with some of his friends. At 7:00 PM, he would drop the ball and walk a few offices past the gym to meet with his probation officer. His probation officer was stationed at the community center as a result of a grant that the community center received from the county juvenile justice department. The purpose of the grant was to provide services at the community center to juvenile delinquents. The condition was that the center was to provide a probation officer an office space to meet with clients. The result was a combining of social services with state surveillance in one location. As my study went on, I realized that the punitive arm of the state, the criminal justice enterprise, had percolated itself into traditionally nurturing in situations like the family and the community center. This created a contradiction because the philosophy and practice of these two very different institutions have traditionally diverged: the criminal justice system, although at times attempting to reform, is primarily concerned with managing crime and imposing

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sanctions on transgressors; the community center, a social service institution, is concerned with providing emotional, physical, and academic support to its clients, unconditionally, with the intention of developing individuals into healthy, independent, and responsible citizens. So what happens when the punishing arm of the state imposes itself physically and procedurally onto nurturing institutions? When the state criminal justice system crosses into traditionally supportive institutions, delinquent kids become labeled and treated as criminals not only by police, courts, and probation officers but also by teachers, community centers, and even parents. This is a problem when the latter institutions are meant to make productive citizens out of youth—not see them as criminals—risking that the youth internalize this criminalization and become ticking time bombs. Stanley Cohen (1972) calls this process “deviance amplification,” in which parents participate in the labeling of their kids as criminals and, in the process, end up alienating themselves from their children. In his classic study, Cohen illustrates how youth can fall into a spiral of deviance when, as an act of resistance to authority figures (i.e., the police), they commit more and more intense acts of deviance. Rather than break away from hypercriminalization, black and Latino youth are unfortunately conforming and internalizing their oppression. However, beyond Bourdieu’s pessimistic symbolic violence, the youth also demonstrate their ability to change their own internalized oppression. Although the youth often internalize and naturalize their criminalization, they often do it as a form of resistance, as a strategy to defy the very same process of criminalization. They embrace the labels of thug or criminal to navigate their social world. However, once given opportunities to embrace a less-violent and more nurturing environment, they abandon the negative attitude fairly quickly. For example, when I took the youth I interviewed to community events and college functions to provide them exposure to positive settings, their “presentation of self ” (Goffman 1959) became positive: They began to express their desire to be change their lives, they expressed their hopes and dreams, and they began to ask, as Ronny put it, “How can I change my life? I mean I know I got a lotta’ shit going on but I been through the worse already. How can I make it better?”12 HYPERCRIMINALIZATION AS SOCIAL DISPLACEMENT From a young age, poor urban black and Latino male youth face stigmatizing and punitive interactions in various settings in their communities. As often well-intentioned probation officers, teachers, community center workers, and police officers attempt to grapple with the deviance and risks that youth have, they adopt ideas and practices that further render young males of color suspicious and criminal. This in turn contributes to youth committing more deviance and crime. Although most adults in the community attempt to support youth, they have few programmatic or financial resources to provide deviant youth successful alternatives that might allow them to reform. Reform and rehabilitation programs have continued to decline, and now, at the end of the twentieth century and the beginning of the twenty-first century, the public and the politicians continue to call for punitive policies that treat juveniles as adults. In a time when crime control seems to calm anxiety in the public,

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a punitive carceral system of managing the poor has developed (e.g., see Castells 1997; Parenti 2000; Wacquant 2001). This system is inexpensive and easy to implement, and at first appearance it is successful—it is a system of all-encompassing criminalization that manages youth as criminal risks to calm adult anxieties in the community. Nonviolent youth offenders, the majority of deviant youth, are criminalized and managed as if they were serious criminal risks. In the era of mass incarceration, solidarity in society has formed around the notion that young adults who commit small acts of deviance will inevitably return and commit a severe—and maybe even violent—act. This leads many community members, including teachers, youth development workers, and probation officers, to treat all deviant youth as criminal suspects. Even some parents have demonstrated this ideology. A mother of a sixteen-year-old Latino youth I interviewed explained her perspective: Right now they are getting him [her son] for whatever little thing like marijuana and for stealing at the store but one day they are going to get him for robbing or shooting someone. This child is out of control. . . . I think they need to incarcerate him for some time . . . until he learns to be good.13

Even those adults in the community who are well-meaning seem to, often unintentionally, align themselves with racist ideologues and politicians who continue to systematically call for containment and “incapacitation” of youth of color. William Bennet and John J. Dilulio are prime examples of influential ideologues who have generated mass hysteria and influenced punitive juvenile justice policies that have a detrimental effect on youth of color. In the mid-1990s, John J. Dilulio, a fellow at the right-wing conservative think tank, The Manhattan Institute (and who would later become President George W. Bush’s Director of Faith-Based Initiatives), coined the term “superpredator,” claiming that poor, urban youth of color were an emerging violent and criminal risk to society and that serious punitive policies had to be created to “deter” and “incapacitate” them at as early an age as possible: Try as we might, there is ultimately very little that we can do to alter the early lifeexperiences that make some boys criminally “at risk.” Neither can we do much to rehabilitate them once they have crossed the prison gates. Let us, therefore, do what we can to deter them by means of strict criminal sanctions, and, where deterrence fails, to incapacitate them. Let the government Leviathan lock them up and, when prudence dictates, throw away the key. (Dilulio 1996: 3)

William Bennett, former Education Secretary under Ronald Reagan and former Director of Drug Control Policy under George H. W. Bush, helped Dilulio develop and disseminate the “superpredator” thesis, leading to punitive juvenile justice reform throughout the nation. Together they wrote Body Count: Moral Poverty . . . and How to Win America’s War Against Crime and Drugs (1996), a book that extended their argument for increased punitive measures against crime and, in particular, juvenile crime.

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As if influencing a punitive shift in the juvenile justice system and a national racist hate for youth of color in the late 1990s were not enough, Bennett continues to attack and degrade black youth to this day. On September 28, 2005, he made the following statement: But I do know that it’s true that if you wanted to reduce crime, you could, if that were your sole purpose, you could abort every black baby in this country, and your crime rate would go down . . . [this is] an impossible, ridiculous and morally reprehensible thing to do, but your crime rate would go down.

Although this grotesque and genocidal ideology may seem extreme to some, youth of color are used to being treated by many as though these assumptions are true. Moreover, the findings in my study indicate that this racist ideology is embedded not only in the minds of some influential white males but also in the everyday perceptions of everyday people responsible for the everyday well-being of children of color. That William Bennett has managed to influence punitive criminal justice policy and state-imposed racial violence is disturbing; that policy makers, the public, and the criminal justice system apply Bennett’s thinking to their actions is even more disturbing. However, the most disheartening finding in this study is that those institutions traditionally responsible for protecting and nurturing children and youth—the school, community centers, and the family—have begun to construct and treat deviant youth as criminal threats, mimicking the punitive grip of the criminal justice system. It seems that one of the most brutal yet unexamined collateral consequences of punitive criminal justice policies and mass imprisonment is that of the non–criminal justice institution being penetrated and influenced by the detrimental effects of the criminal justice system. Youth of color are hypercriminalized because they encounter criminalization in all the settings they navigate. Although most of the adults in the community care about the youth they interact with, most are uncritical of how their epistemology shapes the way in which they treat and criminalize the youth they are attempting to support. I observed mothers asking their kids when they would be arrested again, teachers calling police officers to report spitball incidents, and community center staff actively collaborating with probation departments. It was not only the field of the de jure policing and surveillance that affected these youth but also the field of de facto criminalization at school, home, and community centers that affected them at an everyday level. As the penal state expands to control and manage poor racialized bodies, a new unintended system of interconnected institutions has formed to brand, further degrade, and contain youth of color. This youth control complex, as an ecology of interlinked institutional arrangements that manages and controls the everyday lives of inner-city youth of color, has taken a devastating grip on the lives of many impoverished male youth of color in the inner city. Youth experience and explain this massive structure that surrounds them as a unified and uniform criminalizing system, whether in school, at home, or on the street. If we are to support poor youth of color in this era of mass incarceration and the decline of the welfare state, adult allies should be critical of their interactions with criminalized youth. Otherwise, we may

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be perpetuating the very force we are attempting to dismantle—the hypercriminalization of our youth. A NEW ERA, A NEW PARADIGM In a new era in which where poor racialized bodies are managed as criminal risks instead of provided with social services to recuperate from social misery, youth of color face a coming-of-age crisis. Historically, for youth of color in the midst of racial violence, facing such crisis is nothing new. A little over twenty years after the Emancipation Proclamation, as a student at Fisk College (1885–88), W. E. B. Du Bois marched into the “hills of Tennessee” to teach black children. He noticed that black children played a different role in the new postslavery social landscape. Although, in the legal discourse, they were no longer violently forced to labor on the land for no compensation, their role was undefined in postemancipation America. Black youth remained in a state of limbo. Du Bois observed that the youth did not expect to work for nothing but that they had few alternatives. They lived in a state of identity crisis: What should their role be in this new society? The mass of those to whom slavery was a dim recollection of childhood found the world a puzzling thing: it asked little of them, and they answered with little, and yet it ridiculed their offering. Such a paradox they could not understand, and therefore sank into listless indifference, or shiftlessness, or reckless bravado. . . . Ill could they be content, born without and beyond the World. And their weak wings beat against their barriers,—barriers of caste, of youth, of life; at last, in dangerous moments, against everything that opposed even a whim. (1899: 101)

Today’s urban black and Latino youth live in “dangerous moments.” Their role in the postindustrial, mass-incarceration era is undefined, and in this limbo, the punitive society is finding a new place for poor youth of color: hypercriminalization and mass incarceration. NOTES 1. As of 2003, of a total of 832,400 incarcerated black males, 577,300 were between twenty and thirty-nine years old. For “Hispanics,” 270,600 of a total of 363,900 inmates were between twenty and thirty-nine years old (Paige 2004). 2. Association of Bay Area Governments, http://www.abag.ca.gov. 3. Federal Reserve bank of San Francisco, http://www.frbsf.org. 4. In the community, youth who have been arrested or who have been labeled deviant or criminal by police, schools, or other adults are referred to as “criminalized” youth. I use the term in the same manner. 5. Personal interview, Jose Ramirez [pseudonym], April 2004. 6. Ibid. 7. Ibid. 8. Ibid., May 2004. 9. Personal interview, Ronny Thompson [pseudonym], February 2004. 10. Personal interview, James [pseudonym], October, 2003.

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11. Personal interview, Junior Diaz [pseudonym], November 2003. 12. Personal interview, Ronny Thompson [pseudonym], January 2004. 13. Personal interview, Refugio Munoz, translated by author, October 2003.

REFERENCE LIST Anderson, Elijah. 1994. Code of the streets: Decency, violence, and the moral life of the inner city. New York: W. W. Norton. ———. 1990. Streetwise: Race, class, and change in an urban community. Chicago: University of Chicago Press. Arnett Ferguson, Ann. 2000. Bad boys: Public schools in the making of black masculinity. Ann Arbor: University of Michigan Press. Becker, Howard S. 1957. Modern sociological theory in continuity and change. New York: Dryden. ———. 1963. Outsiders: Studies in the sociology of deviance. New York: Free Press. ———, ed. 1964. The other side: Perspectives on deviance. New York: Free Press. Bennett, William, J. Dilulio, and J. Waters. 1996. Body count: Moral poverty . . . and how to win america’s war against crime and drugs. New York: Simon and Schuster. Bourdieu, Pierre, and Loïc Wacquant. 1992. An invitation to reflexive sociology. Chicago: Chicago University Press. Caulfield, M. 2005. White House condemns Bennett’s remarks. Boston Globe, September 30. Castells, Manuel. 1997. The information age: Economy, society and culture. Cambridge, MA: Blackwell. Chesney-Lind, Medea, and Marc Mauer. 2004. Invisible punishment: The collateral consequences of mass imprisonment. New York: New Press, 2004. Cohen, Stanley. 1972. Folk devils and moral panics. London: Macgibbon and Kee. Davis, A. Y. 2003. Are prisons obsolete? New York: Seven Stories. Dilulio, J. J. 1996. Help wanted: Economists, crime and public policy. Journal of Economic Perspectives, 10 (1): 3–24. Du Bois, W. E. B. 1899. A Negro schoolmaster in the New South. Atlantic Monthly (January): 99–104. Foucault, Michel. 1995. Discipline and punish: The birth of the prison. New York: Random House. ———. 1988. The dangerous individual. In Michel Foucault: Politics, philosophy, culture: Interviews and other writings 1977–1984, ed. L. D. Kritzman, . New York: Routledge. ———. 1980. Prison talk. In Power/knowledge: Selected interviews and other writings, 1972–77, ed. C. Gordon, . New York: Pantheon. Garland, David W. 2001. Mass imprisonment: Social causes & consequences. Thousand Oaks, CA: Sage. Garfinkel, Harold. 1956. Conditions of successful degradation ceremonies. American Journal of Sociology 61:420–24. ———. 1967. Studies in ethnomethodology. Englewood Cliffs, NJ: Prentice Hall. Geertz, Clifford. 1998. The world in pieces. Focal 32:91–117. Goffman, Erving. 1959. The presentation of self in everyday life. Garden City, NJ: Doubleday. Males, M., and D. Macallier. 2000. The color of justice: An analysis of juvenile adult court transfers in California. Washington, DC: Youth Law Center, Building Blocks for Youth. Available at http://www.buildingblocksforyouth.org/colorofjustice/cojpr.html.

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Paige, Harrison. 2004. Prison and jail inmates at midyear 2003. Washington, DC: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics Bulletin. Parenti, Christian. 2000. Lockdown in America: Police and prisons in the age of crisis. London: Verso. Simon, J. 1997. Governing through crime. In The crime conondrum: Essays on criminal justice, ed. Lawrence Friedman and George Fisher, . Boulder, CO: Westview. Spradley, James P. 1979. The ethnographic interview. New York: Holt, Rinehart, and Winston. Taylor, Denny. 1990. Learning denied. Portsmouth, NH: Heinemann. Turk, Austin T. 1966. Conflict and criminality. American Sociological Review 31:338–52. Villaruel, F., and N. Walker. 2002. ¿Dónde Está la Justicia? A Call to Action on behalf of Latino and Latino Youth in the U.S. Justice System. Washington, DC: Youth Law Center, Building Blocks for Youth, Research. Available at http://www.buildingblocksforyouth.org/Latino_rpt/pr_english.html. Vigil, James D. 2002. Street cultures in the mega-city. Austin: University of Texas Press. Wacquant, L. 2004. Decivilizing and demonizing: Remaking the black American ghetto. In The sociology of Norbert Elias, ed. Steven Loyal and Stephen Quilley, 95–121. New York: Cambridge University Press. ———. 2002. From slavery to mass incarceration. New Left Review 13:41–60. ———. 2001. Deadly symbiosis: When ghetto and prison meet and mesh. In Mass imprisonment: Social causes and consequences, ed. D. Garland, . London: Sage. Wacquant, L., and W. J. Wilson. 1989. Poverty, joblessness, and the social transformation of the inner city. In Welfare policy for the 1990s, ed. P. H. Cottingham and D. T. Ellwood, . Cambridge, MA: Harvard University Press. Willis, P. 1977. Learning to labor: How working class kids get working class jobs. New York: Columbia University Press. Wilson, W. J. 1996. When work disappears: The world of the new urban poor. New York: Vintage Books. ———. 1987. The truly disadvantaged: The inner city, the underclass, and public policy. Chicago: University of Chicago Press. ———. 1980. The declining significance of race: Blacks and changing American institutions. Chicago: University of Chicago Press. Yetman, N.R. 2000. Voices from slavery. New York: Holt, Rinehart, and Winston.

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RECONSTRUCTING RACE AND CRIME: THE RADICAL TRADITION REVISITED Tony Platt

INTRODUCTION I am grateful to the organizers of this conference for bringing together researchers, educators, and activists through the stated initiative “to help identify and eradicate dimensions of racialized social and political exclusion that are generated, reproduced and intensified by past and present U.S. criminal justice policy.”1 The Institute for Research in African American Studies at Columbia University continues a very long black tradition in antiracist, criminological praxis, from W. E. B. Du Bois’s policylinked studies of crime in Philadelphia and the South at the end of the nineteenth century; to E. Franklin Frazier’s refutation of essentialist explanations of African American criminality in the 1930s and 1940s; to the efforts of the prison movement, community activists, and progressive intellectuals in the 1960s and 1970s to expose and challenge the workings of institutionalized racism in criminal justice; to the important theoretical insights of Stuart Hall and his colleagues in England in the late 1970s into the cultural discourse of “law and order.” What comes to mind when we think of antiracist criminology is the movement of the 1960s and early 1970s that helped to demystify myths about the neutrality of the law and the benevolence of the state, communicate the subjective experience of oppression, and expose the raw, mean-spirited underbelly of American justice.2 Long before “radical criminology” emerged in academia, the popular imagination was fired by the writings of activists who had personally experienced racialized justice in the United States. From the black movements especially (civil rights, ghetto rebellions, and revolutionary organizations) came a flood of personal testimonies and trenchant critiques, often published by leading commercial publishers. The Autobiography of Malcolm X, which included his years of struggle in prison, was issued as a best-selling paperback soon after his assassination in 1965, the same year that Claude Brown’s autobiographical account of his experiences in juvenile reformatories (Manchild in

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the Promised Land) was published. A few years later, 1968 saw the publication of Eldridge Cleaver’s Soul on Ice and Bobby Seale’s Seize The Time. George Jackson’s letters from prison were published in The New York Review of Books in 1970 in the same month that his Soledad Brother, with an introduction by Jean Genet, was released. This revolutionary critique of the prison system became widely read, especially after Jackson was killed in prison. A year later, the collective autobiography of the New York 21—members of the Black Panther Party tried for conspiracy in 1969—was published as Look for Me in the Whirlwind. Also in 1971, a collection of writings by Angela Davis and “other political prisoners” was published, with a foreword by Julian Bond. It included James Baldwin’s “open letter to my sister, Angela Davis,” in which he expressed solidarity with her, with George Jackson, and with the numberless prisoners in our concentration camps. “We know that we, the Blacks,” he continued, “and not only we, the Blacks, have been, and are, the victims of a system whose only fuel is greed, whose only god is profit.”3 As this brief overview suggests, the nonacademic criminology of this period was militant, innovative, and reached an audience that ranged far beyond the small circles of the left. Hundreds of thousands of people—even millions—became educated about the injustices of American justice by reading the paperback autobiographies of best-selling revolutionaries and the radical exposés by journalists. The commercial success of Jessica Mitford’s Kind and Usual Punishment (1973), a muckraking critique of “rehabilitation,” prison industries, and medical experimentation on prisoners, was a testimony to the public’s receptiveness to radical ideas. Today we face the challenge of participating in the discourse about crime and race. It has now been over twenty-five years since an antiracist perspective has had a serious effect on public debates about crime. In the 1970s, Richard Nixon successfully racialized the issue of crime and linked widespread anxieties about racial equality to the call for “law and order.” Ronald Reagan’s presidency accelerated the shift to the right in criminal justice policies and inaugurated an unprecedented growth in prison construction and the prison population. By the time that the Democratic Party reclaimed the White House, it had appropriated Republican “law and order” policies. Under Bill Clinton’s presidency, the imprisoned population expanded (topping two million in 1999) and the entire political establishment—former liberals, neoliberals, and neoconservatives—united around a discourse of right-wing populism to justify an apartheid system of justice.4 Although the growth of the prison population has slowed during the Bush administration, the proportion of incarcerated African American men has been rising, reaching the highest rate ever recorded.5 During the hegemony of “law and order,” antiracist perspectives retained a precarious foothold within academia,6 and a few public policy groups—in particular the Sentencing Project and the American Civil Liberties Union—continued to articulate their critiques of the racist underpinnings of criminal justice policies. But the public influence of radical 1970s activism had dissipated by the 1990s, relegated to historical footnotes and nostalgia, or used by the Right to denounce the excesses of the New Left. Recently, however, we have witnessed the revival of prison-related activism. In September 1998, the organization Critical Resistance brought together more than

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three thousand people for a conference in Berkeley, California, to develop strategies for challenging the “prison–industrial complex.”7 The April 2003 conference at Columbia University continued what will hopefully be a renaissance in antiracist criminology. REFRAMING RACE AND CRIMINAL JUSTICE The Africana Criminal Justice Project seeks not only to revive the spirit and passion of community-based activism but also “to reframe academic and policy debates on issues of race and criminal justice, and help mobilize initiatives to address the crisis of racialized mass incarceration.”8 It is in response to this call for reframing that I would like to address strengths and problems in the legacies of antiracist criminology—specifically, the theoretical and scholarly aspects of the radical tradition in criminology. With respect to the main ideas and arguments that form the foundations of antiracist criminology, the movement of the 1960s and 1970s was not the decisive rupture with the past that its proponents sometimes claim. We can find theoretical and ideological continuities, for example, in the writings of Du Bois, E. Franklin Frazier, George Jackson, and Angela Davis, and similarities in critiques of American justice by activists from the early, middle, and latter stages of the twentieth century. Moreover, the line between radical-Marxist-nationalist and liberal-social-democratic perspectives is often more blurred than clearly demarcated.9 For example, a central concept of antiracist criminology—namely, the pervasive role of institutionalized racism in the content, procedures, and implementation of American justice—can be traced at least to Du Bois’s hundred-year-old observations in The Souls of Black Folk about the “double system of justice, which erred on the white side by undue leniency and the practical immunity of red-handed criminals, and erred on the black side by undue severity, injustice, and lack of discrimination.”10 Or listen to Du Bois’s eloquent voice when he captures the hypocrisy of American justice and anticipates the insights of cultural studies: “[W]hen you fasten crime upon this race as its peculiar trait, they answer that slavery was the arch-crime, and lynching and lawlessness its twin abortion; that color and race are not crimes, and yet they it is which in this land receives most unceasing condemnation, North, East, South and West.”11 Or consider how Du Bois tackled the difficult subject of the apparently high criminality rates of African Americans after the Civil War, which he refuses to explain in reductionist, one-dimensional terms. “Crime is a difficult subject to study,” he observes in The Philadelphia Negro (1899), “more difficult to analyze into its sociological elements, and most difficult to cure or suppress.” Intraracial crime in black communities, he continued, is the result of “deep social causes.”12 Du Bois’s insight, expressed at the Ninth Atlanta Conference in 1906, that “The Negro is not naturally criminal”13 was taken up in the work of sociologist E. Franklin Frazier, who set out to refute the predominant view that crime and disorganization in African American communities was “a sign of the inability of the Negro to measure up to the . . . standards of Western civilization.”14 Frazier and Du Bois’s observation—that crimes

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committed by African Americans “are not racial traits but due to perfectly evident historic causes”15—is taken for granted by sociologists today but is worth revisiting given the revival of essentialist, biologically based theories of crime and intelligence, which have gained new respectability since publication of The Bell Curve.16 CONTRIBUTIONS During the last thirty years, antiracist scholarship has deepened and expanded our understanding of the interconnections between race and crime in at least three ways. First, a great deal of research has focused on, in Frazier’s words, the relationship between “Negro crime” and “economic and social conditions.”17 In part this involves moving beyond images of pathological inferiority and reified victimhood to create complex portraits of human agency and creativity. Drawing on symbolic interactionism and cultural anthropology, researchers have endowed “no name” people—to use Maxine Hong Kingston’s term from her 1975 book, The Woman Warrior—with fully human, complex personalities. In Philippe Bourgois’s important study, for example, inner-city crack dealers are portrayed not as “exotic others operating in an irrational netherworld” but, rather, as quintessential “private entrepreneurs [who] take risks, work hard, and pray for good luck.” They are “rugged individualists,” says Bourgois, who are “made in America” and “believe in Horatio Alger’s version of the American Dream.”18 Second, we now understand in great detail the workings of Du Bois’s “double system of justice.” The main focus of research has been on understanding and explaining why the criminal justice system has become increasingly racialized. Almost one in every three arrests involves African Americans, and on any given day, about one-third of all young African American men are imprisoned, on probation, or on parole.19 The literature on this issue is richly textured and anchored in a policy framework that calls for community-based alternatives to imprisonment.20 Historical studies on the development of antidrug legislation, the organization of modern policing, and antidrug sentencing in the 1980s21 have demonstrated how and why racism is so central to the operating assumptions of criminal justice policies. Antiracist criminology draws on an eclectic theoretical framework to explain why the criminal justice system is such an important site of racism. It builds on Foucault’s idea of “the carceral archipelago” and Georg Rusche’s analysis of the relationship between modes of production and punishment to explore the regulation of “those segments of urban society deemed disreputable, derelict, and dangerous.”22 Recently, the Critical Resistance group has borrowed from earlier radical analyses of the military and policing to evoke the presence of a “prison–industrial complex” that exploits prison labor and enables “capitalism [to] flourish from locking people in cages.”23 Loïc Wacquant argues instead for the emergence of a “carceral-assistential complex which carries out its mission to surveil, train and neutralize the populations recalcitrant or superfluous to the new economic and racial regime.” Wacquant’s “complex,” driven by a need to regulate thousands of “younger black men rejected by the deregulated wage-labor market,” serves to expand and remake the ghetto into “the first genuine prison society of history.”24

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The third important contribution to an antiracist criminology comes from scholars in cultural studies who focus on the public discourse of “law and order,” the fastening of race to crime, to use Du Bois’s imagery. This tendency owes a great deal to the cultural studies group in England, and in particular the 1978 study of the social construction of “mugging” by Stuart Hall and his colleagues at the University of Birmingham. Their study, Policing the Crisis, examined “why and how the themes of race, crime, and youth—condensed into the image of ‘mugging’—come to serve as the articulator of the crisis [of political authority and the social order], as its ideological conductor.” Policing demonstrates how since the 1970s, the Right has been able to make crime an issue of “common sense” that evokes a mythic past of ordered stability and panders to populist, authoritarian fears of racial disorder.25 CHALLENGES These three tendencies provide a solid foundation for the revival of a progressive agenda, but we also face some serious challenges. Given the extraordinarily racialized nature of American criminal justice—and in particular its targeting of young African American men—we must retain a central focus on issues of “race.” But developing a theoretical framework for an antiracist criminology in a neoconservative age also requires us to address such problematic legacies as the lack of comparative and interdisciplinary analyses, the marginalization of gender issues, and the limits of an anticolonial framework. It would help us to broaden the vision of antiracist criminology through interdisciplinary studies and through making links between different systems of regulation and control. For example, the role of incarceration within African American communities is paralleled historically by the use of reservations and boarding schools against American Indian communities, by the use of deportation policies against political activists and Latino agricultural workers, and by the use of sexually repressive policies against gays and lesbians. Even in studies that focus on the racial uses of imprisonment, there is still a tendency to separate rather than compare the experiences of African Americans in the East and Midwest from those of American Indians and Latinos in the Southwest.26 Also, it would be instructive to examine imprisonment and welfare as constitutive elements of an interrelated policy rather than polarized opposites. Similar to poorhouses of the past, which combined work with penal sanctions, today’s welfare and criminal justice policies represent a division of labor between different managerial agencies, with jails and prisons primarily containing and punishing unemployed men and welfare agencies primarily regulating and humiliating poor women and children.27 A comparative analysis of welfare and criminal justice policies might help also to infuse a gender perspective into antiracist criminology. The “sense of manhood” that Du Bois focused on in The Philadelphia Negro has remained the priority of antiracist criminology, despite the development in recent years of feminist perspectives on African American women.28 It is becoming more common these days to find panels at criminology conferences on “women of color,” albeit in their separate sphere, but gender rarely is acknowledged in mainstream or even radical analyses.29

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In the 1960s and 1970s, our work was anchored in clearly defined political agendas and strategies. For liberals, the 1968 Kerner Report served as a voice of moral clarity, calling on the government to live up to its stated ideals. For antiracist leftists, there was the model of national liberation against Western colonialism in the “Third World” and, at home, the struggle for “self-determination” by “internal colonies” in the “belly of the beast.” There were plenty of road maps to equality—Marxist, nationalist, socialist—and we seemed to have a clear sense of what direction to take. Now, disconnected from political visions, we must try to find our bearings without a modernist map and with little remaining of the social democratic, anticolonial, civil rights, and leftist models of the twentieth century to guide us. There is no solution to this dilemma other than grappling with the need to develop new models and strategies and resisting the temptation to mechanically resurrect the political past. NOTES 1. Geoff Ward and Manning Marable, “Toward a New Civic Leadership: The African American Criminal Justice Project,” Social Justice 30, no. 2 (2003): 89–97. 2. Tony Platt, “If We Know, Then We Must Fight: The Origins of Radical Criminology in the United States,” in Radical Sociologists and the Movement: Experiences, Lessons, and Legacies, ed. Martin Oppenheimer, Martin J. Murray, and Rhonda F. Levine, 219–32 (Philadelphia: Temple University Press, 1991). 3. James Baldwin, “An Open Letter to My Sister, Angela Davis,” in If They Come in the Morning: Voices of Resistance, ed. Angela Davis, 16, 17 (New York: Third Press, 1971). 4. Tony Platt, “Social Insecurity: The Transformation of American Criminal Justice, 1965–2000,” Social Justice 28, no. 1 (2001): 138–55. 5. According to the latest figures provided by the Bureau of Justice Statistics, an estimated 12 percent of African American men between the ages of 20 and 34 are in jail or prison. It is calculated that 28 percent of black men will be imprisoned during their lifetime. Fox Butterfield, “Prison Rates Among Blacks Reach A Peak, Report Finds,” New York Times, April 7, 2003, p. 11. 6. See, for example, Coramae Richey Mann, Unequal Justice: A Question of Color (Bloomington: Indiana University Press, 1993); Darnell F. Hawkins, ed., Ethnicity, Race, and Crime (Albany: State University of New York Press, 1995); and Shaun L. Gabbidon, Helen Taylor Greene, and Vernetta D. Young, African American Classics in Criminology and Criminal Justice (Thousand Oaks, CA: Sage, 2003). 7. Several papers delivered at the conference are collected in “Critical Resistance to the Prison–Industrial Complex,” Social Justice 27, no. 3 (2000). 8. Ward and Marable, “Toward a New Civic Leadership”; emphasis added. 9. For example, some of the most uncompromising critiques of racist justice can be found in such liberal writings as: Gunnar Myrdal, An American Dilemma: The Negro Problem and Modern Democracy (New York: Harper and Brothers, 1944); and the Kerner Report, issued by the National Advisory Commission on Civil Disorders (New York: Bantam Books, 1968). 10. W. E. B. Du Bois, The Souls of Black Folk, ed. David W. Blight and Robert GoodingWilliams (Boston: Bedford Books, 1997), 142. 11. Ibid., 100.

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12. W. E. B. Du Bois, The Philadelphia Negro: A Social Study, ed. Elijah Anderson (Philadelphia: University of Pennsylvania Press, 1996), 241–42, 259. 13. Du Bois’s statement on “Negro Crime” at the Ninth Atlanta Conference (1906) is reprinted in The Review of Black Political Economy 16, nos. 1–2 (1987): 54. 14. E. Franklin Frazier, The Negro Family in Chicago (Chicago: University of Chicago Press, 1932), 245. On Frazier’s efforts to combat essentialist views of black crime, see Anthony M. Platt, E. Franklin Frazier Reconsidered (New Brunswick, NJ: Rutgers University Press, 1991); and Frazier, The Negro in the United States (New York: Macmillan, 1949), Chapter 25. 15. Du Bois, “Negro Crime.” 16. The simplistic connection between race and crime, put to rest with the publication of Willem Adriaan Bonger’s Race and Crime (New York: Columbia University Press, 1943), has been given new academic respectability since the publication of Richard J. Herrnstein and Charles Murray, The Bell Curve: Intelligence and Class Structure in American Life (New York: Free Press, 1994). 17. Frazier, The Negro in the United States, 652–53. 18. Philippe Bourgois, In Search of Respect: Selling Crack in El Barrio (Cambridge: Cambridge University Press, 1995), 326. 19. Platt, “Social Insecurity”; Loïc Wacquant, “Deadly Symbiosis: When Ghetto and Prison Meet and Mesh,” Punishment and Society 3, no. 1 (2001): 95–134. 20. See, for example, the proposals in “Critical Resistance to the Prison–Industrial Complex,” Social Justice 27, no. 3 (2000). 21. John Helmer, Drugs and Minority Oppression (New York: Seabury Press, 1975); Tony Platt et al., The Iron Fist and The Velvet Glove: An Analysis of the U.S. Police (San Francisco: Social Justice, 1982); Christian Parenti, Lockdown America: Police and Prisons in the Age of Crisis (New York: Verso, 1999). 22. Wacquant, 107; Michel Foucault, Discipline and Punish (New York: Pantheon, 1977); Georg Rusche and Otto Kirchheimer, Punishment and Social Structure (New York: Columbia University Press, 1939). Rusche’s work was revived in the United States in the 1970s. See Georg Rusche, “Labor Market and Penal Sanction: Thoughts on the Sociology of Criminal Justice,” Crime and Social Justice, no. 10 (1978). The importance of Foucault and Rusche to the development of 1970s radical criminology is discussed in Tony Platt and Paul Takagi, eds., Punishment and Penal Discipline (San Francisco: Social Justice, 1980). 23. Social Justice 27, no. 3 (2000): 6. This framework makes sense for the nineteenth and early twentieth century when prisons played a key role in exploiting convict labor, but today prisoners are mostly unproductive and play a marginal role in the economic system. For a critique of the idea of a “prison–industrial complex,” see Parenti, 230–35. 24. Wacquant, 95, 97, 121. 25. Stuart Hall et al., Policing The Crisis: Mugging, the State, and Law and Order (London: Macmillan, 1978), viii. 26. In “Deadly Symbiosis,” for example, Wacquant refers to Latino prisoners at the beginning of his article but does not follow through on the topic. 27. It is worth revisiting Georg Rusche’s observations, made in 1933, that “the high level of unemployment is not absorbed by the welfare system.” Georg Rusche, “Labor Market and Penal Sanction: Thoughts on the Sociology of Criminal Justice,” in Platt and Takagi, eds., Punishment and Penal Discipline, 16.

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28. Du Bois was interested in “that indefinable but real and mighty moral influence that causes men to have a real sense of manhood or leads them to lose aspiration and selfrespect.” Du Bois, The Philadelphia Negro, 285–86. 29. There are no articles on women in Darnell Hawkins, ed., Ethnicity, Race, and Crime; “women,” “gender,” and “female” do not appear in the index to Mann, Unequal Justice; and Wacquant, “Deadly Symbiosis” focuses exclusively on African American men.

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THE CONDEMNATION OF LITTLE B Elaine Brown

In this chapter I talk about children with respect to the so-called criminal justice system in America. Whether we call it the justice or injustice system is not really important, because the issue of crime in America has to be reexamined to account for the fact that crime is a political question. As the United States marches through Iraq, arbitrarily murdering people in the name of whatever—Bush, or oil, or freedom—we don’t call it mass murder. We call it liberation. But when a person in America is poor and, particularly, black, and he or she commits an offense, it’s called a crime. We don’t say it is mass murder in Iraq, but we call it a crime if one person is killed. This contradiction is at the heart of what I write here about the boy and his case that are the subjects of my latest book, The Condemnation of Little B. People asked, “Did he or didn’t he really do it?” as if innocence or guilt were really the issue in the arrest and conviction of a thirteen-year-old boy sentenced to life in prison. When I saw this child’s picture pasted across the pages of the Atlanta JournalConstitution, my question became instead, “How did there ever come to be a Little B?” That is, I think it is narrowminded to talk only about children who are incarcerated, or about only incarcerated black children. I wanted to talk about how Little B’s case is an index of the status of black people in America today and what we might think about doing rather than simply studying and debating his case. Little B was charged with having murdered a “good” black man in an area of Atlanta called The Bluff, which is a place like any other area that anyone could find in any other community in America, where there is no commerce except for drug sales. It’s not like you’re going to be going to the community theater, or to ballet classes, or to buy fresh fruit and vegetables; you’ll be buying drugs, and that’s it. That’s all that goes on in The Bluff. Little B was charged with shooting this man to death when the man and his wife and two children went to a store in this neighborhood to buy a soda. Little B allegedly walked up to the man and told him to turn out his lights, presumably because his lights would expose the drug sales. The man didn’t turn out his lights, and Little B allegedly shot and killed the man for disrespecting

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him. Now, we’ve heard this kind of story before, and the amazing part about it is how many of us buy into such a scenario. We think that these scenarios are true. As a matter of fact, many of the black people in Atlanta, notwithstanding the usual suspects— the usual racists—believed that the details of this scenario were correct, and they believe that scenarios like this are the problem with black people living in America today—these “little thugs running around killing good black men, killing black people,” and committing black-on-black crime. This little boy was seen as a thug or, using the lingo of today, a “superpredator.” Public outrage over Little B rose up in such a way that it was almost astonishing, and I thought about the O. J. Simpson case and how so many Negroes thought the very opposite, that he was our brother and that we should be supporting him. But in Little B’s case, nobody was saying that he is our son and that maybe he should be presumed innocent—you know how black people love to talk about the law and deal with the letter of the law, as though the law has ever served us. Yet we still talk about the law, as though it has something to do with us. The mayor of Atlanta said that he was shocked that a thirteen-year-old boy could have done something like this. Editorials rose up not just from whites but from black people as well, claiming that this is indeed the problem in black America, these little bad boys running through our streets, hurting our people. It all harked back to Bill Clinton’s statements in 1993, after black people elected him as what some thought was the first black President. In 1993, standing at the very pulpit at which Dr. Martin Luther King gave his last speech in his life, in Memphis, Tennessee, Clinton asked, whether if “Martin” were alive today, sitting by Clinton’s side—an unimaginable concept—what would Martin say? And, of course, Clinton proposed to know what Martin would say: “I died for your freedom, but look what you’ve done with it. Look at this black-on-black crime and these unwed teen mothers and the breakdown of the black family.” In other words, what the Clinton policy became, and what America began to embrace, was the notion that any suffering arising from poverty or from degradation, oppression, or repression—in fact, any problems existing within the black community—was not the fault of the government or larger society. These problems existed because something was wrong with black people ourselves. As a result, we get this superpredator concept, proposed and promoted by John Dilulio, the architect of the Bush faith-based initiatives program. Dilulio argues that there is a new breed of criminal rising and that he is black and male and young. If this were just one perception, we could say, well, this is just another little racist talking. But these people make policy and keep the continuum of racism going through the institutions of this country, including the so-called criminal justice system. In examining the case of Little B, notwithstanding the specifics of his particular charge, we could hark back to the case of another kid, Robert “Yummy” Sandifer, in Chicago. Yummy became the cover story of Time magazine1 and was identified by the writer as a sociopath. Dilulio and the other so-called criminologists, like James Q. Wilson, also identified Yummy as a sociopath and, citing his case, predicted the coming of a group of superpredator black young males who were more vicious than ever. Like black people in Memphis following Clinton, black people throughout Atlanta responded to the case of Little B saying, “That’s right. That is the problem in our

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community.” And they began calling for the rope, just as any Ku Klux Klanner would have done back in the 1920s and 1930s. What we find is that these children not only are condemned under the institutionalization of racism but are also condemned by black people, who themselves are beginning to buy into the notion that there is some type of inherent problem among a certain set of black people—these little bad boys—who are running through the streets messing up our “otherwise fabulous” neighborhoods and our freedom because, as Clinton pointed out, Martin Luther King Jr. died for our freedom. We were free, and our freedom was messed up by these little bad boys. A side point on this question of freedom is what I identify as New Age racism. It’s the notion that there’s no more racism. The Civil Rights Movement resolved everything. I’ve had black kids at colleges actually ask me, “What’s the problem today? I’m driving a car. I’ve got a cell phone. What’s the problem? I got Condoleezza Rice. What’s the problem? You can make it. You can be a Star Jones.” So, really, it’s bad choices that these little bad children have made, or some type of inherent problem, one such as the Bell Curve and Dilulio suggest can be found in studies relating crime and genetic make-up,2 when actually there can be no relationship between these two matters. As we know, crime is really a political question, and we know that genetics falls under the area of biology. Notwithstanding any of that, the case of Little B becomes even more significant when you look at the treatment of his case in the press and compare it to that of Kip Kinkel in Oregon. Kip was a fourteen-year-old white boy who woke up one morning, killed his mom and dad, stuffed them underneath the house, and wired the house with explosives, just in case somebody discovered them. He went off to school with an assault rifle and some handguns, with a knife taped to his chest, and shot up twenty-five of his best friends, killing two of them. The headline in the newspaper replicated the banner posted on school grounds, which said, “Why Kip? Why’d you do it? Were you feeling bad?” Or, compare Kip Kinkel and the Columbine boys to the black boys arrested for the “wilding” incident in New York (the so-called Central Park jogger case of assault and rape), in which black people in the city of New York were called upon by Mayor Koch to apologize for this terrible event. Even though none of those boys had even been indicted at the time that Koch called for this act of contrition, certain blacks actually apologized for this offense, which was identified as a wilding as though it was these “bad” boys who had invented the term and not the press. The term is an invocation of language relating to savagery, which reaches back to the Scottsboro boys, to Emmett Till, to the lynching of black men, to slavery— which, of course, is really where this reaches back to. When we talk about the number of young black males in prison, and we know that 49 percent of prisoners in the United States are black, and mostly young black men, we have to ask either what’s wrong with young black men or what’s wrong with these numbers. In the state of Georgia, 94 percent of the children who are tried and incarcerated as adults are black—mostly black boys. In Chicago’s Cook County, the number is 99 percent, and so forth and so on. This pattern exists all over the country—it doesn’t matter whether there’s some minor detail or difference. The bottom line is that black young boys are being incarcerated at rates that are incredible—criminal even. And

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that’s this country’s policy. It’s so sweeping and so common that we have come to the conclusion that it makes sense. So, when Clinton says there’s something wrong with you, we agree, there’s something wrong with us—those unwed teen mothers, laying up having all those babies, and those bad black boys. These public policies have been codified and enforced, and we see their terrible results not just in an image in a newspaper or on the cover of Time magazine but in the massive numbers of black children who are incarcerated in the United States of America. But what does this really tell us? In terms of the criminal justice system, just as a matter of point, the UN Convention on the Rights of Children has condemned any country that would put anyone under eighteen years old in prison with an adult. But, of course, this “enlightened” country is one of the very few in the world that puts children in prison with adults, which not only exposes them to physical and sexual assault by guards and other inmates but also fosters high suicide rates and other horrors. In addition, that’s just addressing the human rights issue of children being put into adult prisons and does not take into account the destruction of families as a result of their incarceration—mothers not being able to see their children and families who don’t have enough money not being able to accept their children’s collect telephone calls from prison. In Georgia, for example, the law allows the state to try children as young as thirteen as adults for certain crimes, the so-called Seven Deadly Sins. The majority of these children are convicted of armed robbery. What is armed robbery in Georgia? It means I put my hand in my pocket and I tell you to give me your purse or give me the money in the cash drawer. I don’t have to have a real gun. I could have a toy gun or even an idea of a gun: You thought I had a gun. You were terrorized by me. I looked like somebody who would have had a gun. That’s enough for me to go down on armed robbery, and the odds are that I’m going to be a black kid. J. Tom Morgan, former District Attorney of DeKalb County, one of the counties incorporating Atlanta, said that the reason there are so many young black boys being put into jail, tried as adults, and incarcerated with adults in DeKalb County—where, notably, we had the black-on-black crime of the former county sheriff, Sidney Dorsey, killing the sheriff-elect Derwin Brown—was because black boys were the main ones committing crimes. Dr. Katheryn K. Russell wrote a wonderful book called The Color Of Crime, in which she points out how nobody ever talks about “white-on-white crime,” even though it makes up the predominant number of crimes committed in America. We talk about crack and about black people going to prison for crack cocaine use, when most people who use crack cocaine are, in fact, white. So, race is part of the deal here. And in my opinion, that’s what we really need to get back to and what I wanted the focus of my comments to be here, that this mass incarceration of blacks, the mass condemnation of black boys like Little B, is not merely an indication of the injustice in the criminal justice system but reflects the ongoing, wretched status of black people in America. In the case of a kid like Little B, who was born and raised in a crack house, we have to ask ourselves, where did the crack house come from? Do we have ghettos in America? And if he was just one kid with a bad mom, and we would like to kill the mother because she’s a “crack ‘ho,’” what are we going to do with the kid? There are

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no programs. Forget social services agencies. There are no significant programs to do anything for poor children in America, poor and black children who are abandoned by their parents or whose parents can’t care for them. There isn’t any serious program in place, period. So we have a kid like Little B raised in the ’hood. And we know his ghetto: it’s in Harlem, it’s in North Philly, it’s in DC—it’s all of DC. It’s Baltimore, it’s Miami, it’s Chicago, it’s Detroit, it’s New Orleans, it’s Dallas, it’s Los Angeles, it’s San Francisco, it’s Oakland—you name it. Wherever there are collections of black people, there are a lot of Little Bs. There are, in fact, millions of Little Bs in America, and we don’t even notice them because of the perception that these bad boys are ruining our freedom that we would otherwise have. When I looked at Little B’s case, in particular, and examined not just his so-called criminal case but his personal story and considered that he might have, in fact, killed this man, I thought, well, if he did kill this man, why would we be surprised? We put him in the sewer, abandoned him, and condemned him from the day he was born. He was born in the Age of Crack, the Age of Reagan—1983—and had no one intervening for him or taking care of him from that point forward, nobody to come see about him. I went to the church and said, “Did you notice this boy?” They said, “We never saw him. We never knew him” the same way Peter said he never knew Jesus. We’ve become like Henry Louis Gates Jr. talking about the “two nations” of Black America. There are some of us who’ve made it and done the right thing—the quiet boys, who didn’t bother anybody. Then there are the rest of the people, the Little Bs and their families, who happen to be the majority of black people in America. So what does Little B represent? What does this large number of young black boys incarcerated or otherwise condemned represent with respect to black people? It represents the fact that we still are living the lives of an oppressed people in the United States of America. Now, how do we know that? When we look at other things that measure the quality of black life, when we look at the health status of blacks in America, for example, we realize that the black infant mortality rate remains double that of the white infant mortality rate. Harlem has the infant mortality rate of Bangladesh. When we look at the rate of death from prostate cancer among black men, we find not only that it is double that of white men but that black men have the highest rate of prostate cancer death in the world. So we have to say, wait a minute, what’s wrong with black men? Is there something wrong with you? Are you born with some kind of bad prostate? Are you eating the wrong foods? Do you have a bad lifestyle? Bad choices that you’ve made? Or, is something wrong in the scheme of things? Maybe you made a decision to buy food instead of getting that prostate test. Maybe you decided to feed your children instead of getting a mammogram and so forth and so on. Black people have one of the lowest education rates. For example, at ClarkAtlanta University, a historically black college, of the 1200 entering freshmen last year, only two hundred were males. And yet the majority of men who are in prison and of those who are fighting the Iraq War—notwithstanding Shoshana Johnson— are black men, because they can’t get a job otherwise. Now, we can either go along with The Bell Curve and accept its theory of our intellectual inferiority, or we have to believe there is something else wrong. What I think the criminal justice system represents with respect to black children is the

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devastating continuum of poverty and oppression in which black people live on account of racism in America. This state of affairs has become so acceptable—and this is what I call New Age racism—that here in the city of New York, for example, blacks allowed Guiliani to become mayor when 75 percent or more of the people of New York City are registered Democrats. I don’t know how this Republican was elected. Somebody sneaked into the poll booth to vote for Guiliani and justified it by saying, “Well, at least, he made Central Park safe from these ‘wildings.’” Of course, we now know that those boys in the “wilding” case are innocent. They were charged with and convicted of the rape of the Central Park jogger even though there was no DNA evidence to connect them to her. We have to look at how we got here and what we need to do. There are many wonderful projects and organizations that collect data and document racism. However, the challenge of reviewing this information, especially in this academic setting, is not only collecting the data but answering the questions: What do we do? How do we use this academic setting to bring the campus and the community together around this issue? Dr. King talked about a poor people’s march while indicting America as a violent country, in and of itself. Posing the question at the end of his life, he said, “Where do we go from here?” That’s the question that those of us who are interested in what is happening to our children involved in the so-called criminal justice system of this country should be asking. I’m a part of Mothers Advocating Juvenile Justice, and we’re trying to overturn the laws that allow children to be tried as adults. I’m also now part of a new organization called the National Alliance for Radical Prisoner Reform. We’re not only trying to overturn the laws but also to address questions of reentry and reenfranchisement for ex-offenders and of the needs of prisoners and the inhumane problems they face in prison. At the end of the day, however, even if all these prison reforms and juvenile justice programs worked, we would still not be talking about the freedom of Little B, because Little B grew up in a crack house. Little B grew up in poverty. We would have to talk about the conditions that enable this country to incarcerate children, and particularly black children, at levels that are beyond inhumane. It is barbaric. It borders on fascism. And it’s a critical issue because the very future of our community is being incarcerated in numbers recalling former slave populations. We have, in effect, the same captive slave population in 2003 as in the beginning of the nation. NOTES 1. Nancy R. Gibbs, “Murder in Miniature,” Time, September 19, 1994, pp. 54–59. 2. See John J. Dilulio Jr., “My Black Crime Problem, and Ours,” City Journal 6, no. 2 (1996); and William J. Bennett, John J. Dilulio Jr., John P. Walters, Body Count, Moral Poverty . . . And How to Win America’s War against Crime and Drugs (New York: Simon and Schuster, 1996); Richard Hermstein and Charles Murray, The Bell Curve: Intelligence and Class Structure in American Life (New York: Free Press, 1994).

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THE ROCKEFELLER DRUG LAWS Robert Gangi

The Rockefeller drug laws were passed in 1973 when Nelson Rockefeller was governor of the state of New York. The motivations behind the passage of the laws were widely acknowledged to be political. Rockefeller had made a determination that he could not advance his national political ambitions while being identified as a liberal Republican, particularly as the Republican Party had become more and more conservative. So he made a number of calculations about how to move to the center and to the right of the center along the political spectrum. One of these calculations was in how he handled the Attica uprising in 1971 and another was pushing through the harsh New York drug laws in 1973. The Rockefeller drug laws were the first of their kind at that time, and since then, we have had virtually mandatory sentencing of a similar nature in every state in the country. Just to give you an idea of how severe these laws are, their harshest provision requires a mandatory minimum prison sentence of fifteen years to life for the sale of two ounces or the possession of four ounces of a hard drug. I’d like to talk a little bit about some of the ill effects of that policy to give you some specific idea of the problems they cause. The first is simply how expensive these laws have been. There are in New York State today, over 22,300 drug offenders. It costs New York State over $2 billion to build the prisons to house those people. It cost taxpayers over $215 million a year to pay for the cost of confining those people. This kind of expenditure has contributed to a skewing of government priorities. We now spend in New York State, or, I should say, the government spends, more on prisons than it does on higher education by nearly $300 million a year. We now lock up in New York State every year more black and Latino people on drug charges than black and Latino people graduate from our system of higher education. These drug laws have contributed to difficult conditions inside our prison system. Despite all the money that we have spent on building and operating new prisons over the years, our prisons are still dangerously overcrowded. We currently double-cell or double-bunk over 12,000 inmates in New York State. That’s a particularly hazardous

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condition given the resurgence of tuberculosis—a highly infectious illness—inside our prisons. This kind of overcrowding increases levels of tension and increases the number of violent incidents. Prison is a dangerous place—prisons are dangerous places—both for inmates and for the people who work there. Probably in some ways the most overlooked—and the most significant—problem of the Rockefeller drug laws is that they place the main criterion for guilt not on your role in the drug transaction but on the amount of drugs you have in your possession when you are arrested. The drug kingpins, being savvy people, know that the principal way they can avoid apprehension and prosecution under these laws is never to carry drugs. So what these laws do is skew the way we allocate our law enforcement resources because it becomes almost an incentive for politicians to deploy police in certain kind of ways. With these laws in place, drug sweeps and buy-and-bust operations have an automatic payoff not only to high-level police officials and to people who work in places like City Hall but also to prosecutors who can rack up high incarceration numbers. The laws also contribute to really gross kinds of injustices. Clyde Haverman is a columnist for the New York Times, and he has a piece talking about some of these problems. What he’s determined is that what you have because of these laws is a number of cases in which people were only marginally involved in the drug trade; sometimes their arrest was literally the first time they ever committed a criminal act. The first time they were arrested, they were caught with a small amount of drugs on them, and they consider themselves to be virtually innocent, so they don’t take the plea that is offered to them. Instead, they decide to go to trial and are convicted, and then the court has no choice but to hit them with the mandatory minimum, which is fifteen years to life in prison. Now, this is a harsher sentence than people convicted of rape get, than people convicted of arson or people convicted of armed robbery get. And it’s on the laws of the books of New York State. The last point I want to make relates to the racial factor that goes into the prosecution of the drug laws. Despite the fact that the majority of people who use drugs are white, and many observers think that the majority of people who sell drugs are white (although that fact’s more difficult to prove), the vast majority of people who get sent to prison under the drug laws are people of color. Over 94 percent of the people who are doing time for the possession or sale of narcotics in New York State are African American or Latino. It’s an extraordinary figure. One of the reasons this happens relates to the point I made earlier of how police are deployed. Most of the white people who use drugs, most of the middle-class and upper-class people who use drugs of any race, don’t do it out in the streets. They do it in their offices or they do it in their homes. The drug trade that is carried out in our low-income, inner-city neighborhoods is carried out largely on the streets. There is also more violence associated with that kind of drug trade, so it’s more disruptive to the community, and there is more call for police action. It’s so much easier to arrest those people buying, selling, and using on the streets, and given again the fact that we have these laws on the books. With the criterion for culpability based on these laws, the prosecutors know that they are going to be able to prosecute those people; they know that they are going to be able to send large numbers of those people away

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to prison. So one of the benefits that would likely result from the repeal of these laws, or even the significant reform of these laws, would be a change in some of the racially discriminatory police practices that go on today in places like New York City. Another point to make that I think is very relevant to the issue and relevant to the advocacy work that people like me and others are involved in is that more and more research is coming out that shows that treatment is not only more humane and much less expensive than prison, but it is also more effective in reducing the crime associated with the drug trade than is imprisonment. So now we can say without apology and in complete confidence that these laws are wasteful, they are ineffective, they are unjust, and they are marked by racial bias, and it’s time to change them. Finally, what is important for all of us, I think, to recognize is that there is a very broad-based movement in New York State today aimed at changing these laws and that the people who are a part of this movement are coming from all corners of the state and across the political spectrum. There are even some former Republican state senators who have joined the coalition of people calling for significant reforms of these laws. So there is a movement in place: This is an opportunity, an immediate and pragmatic opportunity, for us to have an effect on the policy that has contributed to some of the destructive trends that are addressed in this book. I urge all of you to in some form or fashion participate in that effort.

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RACISM AND CAPITAL PUNISHMENT George Kendall

I would like provide a little historical context into the very important question about the influence of race and the administration of the death penalty in our country. The Michigan state legislature is currently pondering whether or not to reintroduce the death penalty in that state. Many of you might now know that Michigan was the first state in this country to, in 1853, I believe, abolish the death penalty. To date, the penalty has not been brought back, and we hope that it still won’t be. Some of the arguments that are being used by supporters of the death penalty in that state is that the citizens of Michigan should not fear that racism would continue to mar the institution of capital punishment because in that great state, the proponents of the bill are telling the citizens of Michigan that they can write a statute that will prevent race from influencing death. I’m sure that a majority of the citizens out there know better, because a quick review of the role that racism plays in the administration of death in this country leaves us little doubt that we have got a long way to go for that fact to be true. Race and the administration of the death penalty have been like peas in a pod since the beginning of our country. As many of you know, for more than half of our country’s history, race was a factor that had to be considered during sentencing proceedings. If you were black and you killed a white person, under the slave codes in this country, there was only one sentence—mandatory death. If you were white and you killed a black person in many of these same jurisdictions, however, the punishment for the first murder often was a small fine or even no punishment at all. The only time when there was any discussion about a sanction was if there was a second or a third black person killed by one white person. This was all supposed to change after the Civil War with the adoption of the Thirteenth Amendment, which barred slavery. In fact, however, it did not, as many of the states that had slave codes simply changed them to so-called black codes and reenacted these same statutes. The members of Congress were somewhat startled by this move, and in fact the history under these black codes, the history in 1865 or 1866, caused Congress to go back and see

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that the Fourteenth Amendment, which barred discrimination and which guaranteed all citizens, white or black or any other color, equal protection under the law, became law. For the first time, African Americans were sitting as jurors in many states, and blacks also became governors and senators and congresspersons and judges for the first time. To a great degree, that involvement all ended beginning in the 1880s, and black participation in the criminal justice system virtually ended by the 1900s— except in the role of defendant. We can see that during the period of lynching in this country that began in the 1880s, hundreds and hundreds and hundreds of African American men were lynched, often on the mere suspicion that they had committed a crime against a white person. This only began to change when the National Association for the Advancement of Colored People came together—one of the main reasons why the association was formed was to end lynching in our country. Yet even when the practice of lynching faded away, what rose in its place was a practice to which historians now refer to as legal lynching. It was not at all unusual for a black person alleged to have committed the murder or rape of a white person to be charged on a Monday, tried on a Wednesday, convicted on Thursday, and hung on Friday on the courthouse lawn. Often, and there were hundreds of these cases, the sheriff begged with the mob, please don’t break in, please don’t burn down our jail, we will see that justice prevails. And it did prevail—with the mob outside, there would be a sham trial, and the person would be convicted, sentenced to death, and hung right then and there. These practices only began to change in the early 1950s and 1960s, when the U.S. Supreme Court under Chief Justice Warren decided that it could no longer turn a blind eye to this state of affairs and rendered some decisions that at least slowed down the ability of state judicial officers to guarantee that only whites would sit on juries. In 1963, the court ordered that, in felony cases, if you were too poor to have a lawyer, it was the responsibility of the state to provide you one. There were people being charged with capital cases back in the 1930s, 1940s, and 1950s who had a lawyer who was paid fifty dollars for the case and who had no investigator or other resources for the defense. Thus, not surprisingly, when that Supreme Court looked honestly at the practice of the administration of the death penalty in 1972, it struck down every death penalty statute in this country in large part because of the huge continuing influence that racial discrimination played in the penalty’s administration. I think that when the court issued that judgment in June 1972, many members of the court felt that they would never again have to deal with death penalty cases. How wrong they were. Within a year after the Supreme Court struck down the death penalty, over thirty state legislatures had enacted new death penalty statutes, and some of those statutes came back to the Supreme Court as early as 1976. When those statutes came back, the state lawyers stood before the court and pledged to the court that they accepted the court’s judgment, they accepted the fact that race and poverty were playing large roles in the former administration of the death penalty, but stated that they had solved the problem. They declared that if the court gave them a chance, if they have

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approved these new statutes, the states would show that race, poverty, and other arbitrary factors would cease to play any role whatsoever in these cases. Despite arguments that the court should not be so naive, that the court should not be fooled by the cosmetic changes that had been made to the states’ death penalty schemes, the court approved some of these statutes and gave the states a chance to show the court that in fact these ugly factors would play no role. Since that time, the question about race’s role in the administration of the death penalty has turned largely into an empirical question. Well, what are the cases showing, what are we seeing in these cases? I can report that almost all the studies that are done right and that attempt to really look at all the factors that influence why one person gets the death penalty and why another person don’t all come to the same conclusion: Racial discrimination continues to play a very large role in determining who is charged with a capital offense and who ultimately receives that sentence. One of the best sentencing studies ever completed in this country looked at the state of Georgia and examined every homicide case over a seven-year period. This study reached the conclusion that if the victim were white, your chances of receiving the death penalty were more than four times as high than if your victim were nonwhite.1 Despite that stunning, stunning disparity, consider this: The same kind of statistics were used to prove the link between smoking and lung cancer. Most of us will have accepted the proposition that if you smoke, you are increasing your chances of developing lung cancer. Well, that sort of conclusion has proven only that you are doubling your chances of getting lung cancer if you smoke—the data from the Georgia study showed that you were four times as likely to receive the death penalty if your victim was black. Just recently, another very thorough study done in Philadelphia, the cradle of liberty in this country, has shown that simply being black is as much an aggravating factor as if you were to have a prior homicide conviction on your record. Now, why do we continue to see race having such a powerful influence in the administration of the death penalty? There are several reasons. First of all, despite some significant changes in education and in other areas of public life, which in part were begun in the 1960s, the criminal justice system has remained largely immune from that progress. What many people fail to appreciate is that in every state of the country in which the death penalty is used, there is never a case in which it is mandatory that the death penalty be sought. The prosecutor in the given county, our judicial circuits, always has discretion over whether to seek the death penalty or not. If you look at a map of any state in this country that uses the death penalty, it will look like a weather map, with lightning strikes when you just put on that map where people committed crimes that led to the death penalty and where they did not. There are places in Georgia and Alabama where, in one county, there are ten people on that state’s death row who committed crimes, and in the next county, because there is a different district attorney, there are no people on death row. So the district attorney has a tremendous influence over who gets the death penalty and who does not. A published study shows that over 98 percent of the persons who have served as district attorneys in this country since 1976 have been white and that overwhelmingly, these judgments initially are being made by whites.

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Second, the media in this country continue to tell us that white life is more important than nonwhite life. We all know about the case of Jon Benet Ramsey. We have all heard endless stories about it. It’s a great tragedy. How many people in this room know of the young children of color who were killed in Colorado during that same month of that same year? I dare say there isn’t anyone here who can report on them. There were more kids of color who were victims of murder in that state than there were white victims. I think another reason why race continues to play a large role is that our courts, and in particular the Supreme Court, have been willing to issue rulings that create a perception of fairness but that, in practice, have absolutely no influence in reducing racial discrimination. In the major death penalty case on race from this court, McCleskey v. Kemp (1987), the court was confronted with the study from Georgia showing that if your victim were white, you were more than four times as likely to receive the death penalty. No one quarreled with the integrity of that study, but with a vote of five to four, the court held that that showing was not enough to entitle Warren McCleskey to any relief whatsoever, and that unless he could show that his judge, his jury, or the prosecutor had acted with racial animosity in this case, he could be put to death. Warren McCleskey was killed in 1991. In 1986, the court issued a ruling, Batson v. Kentucky, which struck down an earlier decision that allowed prosecutors in many cases just to strike people of color and women from juries. Often, before the Batson ruling, the only people who could sit on these juries, particularly in white victim cases, would be whites There was great promise felt when the verdict for Batson v. Kentucky came down: Finally, in individual cases, we can stop the practice of excluding minorities and others from the juries. However, I would like to report that not too long ago, the Supreme Court issued another ruling, which in their words, said that all the prosecutors have to do when they are challenged for striking the first four or five people of color from the jury pool is simply to have a race-neutral reason for these eliminations. The reasons can be silly, they can funny, they can be stupid, but as long as the reason being race neutral is the only burden the prosecutor has to meet in justifying excluding those jurors. In some jurisdictions, we continue to see what we saw ten years ago, what we saw thirty years ago, what we saw a hundred years ago—that in these very important cases, for the most part, whites are the ones who are sitting on these juries and that there have been a series of other cases in which the court has given the police wide discretion. In 1996, the Wren vs. U.S. case said that racial profiling is permitted so long as the officer can state that the driver was violating a traffic law regardless of how minor or insignificant it was. I dare anyone to drive his or her car three blocks without violating a traffic ordinance. If you look at the traffic laws of the city of New York or anywhere else and then you look at the IRS tax code, the traffic ordinances are larger and more complex. This court decision has given the police unfettered, unchallengeable power to stop anyone they want, and certain African Americans in New Jersey are feeling the full brunt of that power. They can’t drive down the New Jersey Turnpike without either risking—or in fact being—stopped and shot at. The Supreme Court shoulders a great deal of the responsibility here as to why we’re continuing to see the amount of discrimination that we have.

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Is it conceivable in our country, with these traditions and with this history, that we can have a death penalty without race playing a role in its administration? My almost twenty years of work in this area have persuaded me that, no, it’s not possible. But at the same time, if we are going to have a death penalty, are there things that we can do to lessen this influence? The answer is yes. Just this last year, the state of Kentucky, of all places, became the first jurisdiction in this country to pass a law called the Racial Justice Act. It’s a very simple, very straightforward law. It says that if somebody charged with a capital offense can show that his or her prosecutor over a period of time has used race in his or her decisions on whether or not to seek the death penalty, then that individual is entitled to a hearing to prove it. However, Kentucky, I regret to report, is the only jurisdiction that has such a law. In every other state, even if you can show mass discrimination like that, you are not entitled even to a hearing. This statute became law in Kentucky only because when the members of the legislature looked to see how people were sentenced with the death penalty, they saw that everyone on the state’s death row was charged with killing a white person, despite the fact that year in and year out, about 50 percent of the homicide victims in that state have been people of color. What else can be done? In New Jersey, the state’s Supreme Court held that in mixed-race cases in which the victim and the defendant are of different races and there is a question of whether or not the defendant was the perpetrator, the trial judge has to instruct the jury on the difficulties of making interracial identification. This will be an advance for accuracy in cases, and at least with regard to the question of race, when that instruction is given, it will be a better day in New Jersey, not a worse one. There are many rules like this that we could adopt that would lessen the influence of race, but tragically, I can only report to you a very short list of these rules, because by and large, at least in the white community in this country, we are still in a huge state of denial about the influence of racial discrimination in our justice system, and tragically, the criminal justice system remains largely in the hands of whites.

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“IN DEFENSE OF MUMIA”: THE POLITICAL ECONOMY OF RACE, CLASS, GENDER, AND SOCIAL DEATH Leonard Weinglass

Analyzing the structure of the political economy of prisons provides a way of understanding the effect of prisons on communities of color. This chapter addresses the socioeconomic dimensions of the prison system and its structural relationship to the crisis of corporate capitalism. I’m here tonight to speak, of course, about Mumia’s case, which will be the subject, as you know, of the major demonstration in Philadelphia, which I hope many of you will attend. I don’t know how many of you know, but on the West Coast of the United States, from Seattle to San Diego, not a single ship will move. Thanks to the action taken by the International Longshoreman’s Association, which voted unanimously to back Mumia’s case by having a work stoppage on the day of the demonstration in San Francisco. And to further indicate the reach of the case, today 105,000 teachers in the provincial schools of Rio de Janeiro in Brazil convened a one-hour seminar in each of their classes to instruct their students on the case of Mumia Abu Jamal. And it is a case which has garnered international support and attention, the likes of which we haven’t seen since the trial of Angela Davis. Forty members of the Japanese [diet] took a position calling for a new trial. Seventy-five members of the Danish parliament, the former president of West Germany, the foreign minister of Belgium, Bishop Tutu, Nelson Mandela, and the list is endless. Mumia’s book is now being published in seven different languages and his second book is about to be translated into a number of languages as well. And the question is raised why Mumia, why this case, why this time, why is it happening? I’m not sure I have all the answers, but I want to give you some of the underlying data, which might point to the answers. First, let’s talk about Philadelphia. You can’t talk about Mumia’s case without talking about Philadelphia.

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Philadelphia now has one of the largest death rows of any city in the United States. I think it ranks third. Its death row population is 126 inmates. All except fourteen of those inmates are of color. There is no other venue, no other jurisdiction in the United States with a racial disparity on death row as wide as in Philadelphia—no jurisdiction in Alabama, no jurisdiction in Georgia, no jurisdiction in Mississippi or Texas or any other state that you can name. Even more astounding is the fact that of the last fifty-two death sentences handed down in the city of Philadelphia, forty-nine have been of people of color. Professor Baldus, who performed the study in the McCleskey case, also did a study of Philadelphia, and what he found in his study was that if you grew up male and black in Philadelphia, you were 11.5 times more likely to end up on death row than in any state of the South. It is a city that is marred by race, and of course, where that condition exists, it’s reflected on death row. Mumia’s case symbolizes the ultimate racism that pervades that city. If you look at the Philadelphia death row and you look at Mumia’s case, you will have a clearer understanding of what is happening in Philadelphia, and perhaps even a better understanding of what’s happening throughout the country. Racism also exhibited itself in Mumia’s trial. The district attorney, who used to debate me, doesn’t debate any more. Even he had to acknowledge that they removed eleven qualified African American jurors—eleven—and they only permitted two African American jurors on this jury in a city that is 49 percent African American. One had grown up in South Carolina, the other in the Virgin Islands, and they were both older. In addition, a year ago, a tape was released by the district attorney’s office in Philadelphia—the McMann tape—in which the district attorney instructs incoming attorneys on how to pick juries in death penalty cases: He advised them on how to engage in racial exclusion of prospective jurors. These instructions were given after the U.S. Supreme Court decided the Batson case. The one juror that Mumia had selected before his right of self-representation was taken from him, an elderly African American juror, Jenny Dawley, the judge removed from the jury in his chambers in Mumia’s absence. On the issue of class, Mumia, like many people on death row, went to trial without an investigator—his investigator left the case before the trial began because there were no funds to pay him; went to trial without a forensic expert in firearms, which he needed, because the expert said there weren’t sufficient funds to retain him; and went to trial without a pathologist because a pathologist couldn’t be retained on the $150 that the court had allocated. As a matter of fact, Mumia went to trial with a lawyer who hadn’t yet talked to a single witness because he was appointed by the court and was just starting to open his own practice in Philadelphia. And when you look at the total amount that was paid for Mumia’s case, you realize the quality of the justice he received. In New York State, when New York adopted the death penalty, a commission looked into what was needed to properly defend someone who is accused in a capital case. They came up with the figure of $600,000. In the county of Los Angeles, California, the average death penalty case costs the county $60,000, which attorneys in California tell me is much too low. The total amount allocated to

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Mumia’s case for an attorney, for experts, for exhibits, and for photographs was $14,000. So class matters. About a year ago, in Philadelphia, they abolished the practice of retaining private practitioners in defence cases and replaced them with public defenders. The number of convictions and the number of death penalties sharply went down following that decision because of the funding that was made available to the public defenders and the expertise they brought to their cases. Last, we revisit the politics that pervaded Mumia’s case: The jury came back after two hours of deliberation in a case in which Mumia was undefended, in which he had no expert witnesses, in which his main witnesses were made unavailable, in which witnesses have later come forward and said they perjured themselves, and in which other witnesses have said that the police prevented them from testifying. After all of that, what did his jury do, a jury that was improperly selected and purged racially? The jury asked the court to instruct them on the law of manslaughter and third-degree murder. In an undefended case, that jury was thinking manslaughter even as they thought perhaps Mumia had shot the officer. The judge, of course, instructed them that under the laws in Pennsylvania with respect to premeditation, the jury could find premeditation in the fraction of a second it takes to squeeze the trigger of a gun. The jury then returned first-degree murder, qualifying Mumia for a death sentence. The next day at 9 AM, the judge asked the jury to reconvene itself—it was the July 4 weekend, and the jury members had been sequestered for three weeks. The prosecutor knew he had a problem—this jury was thinking manslaughter, how would he going to get the death penalty in this case? What he did was present the jury with a twelve-year-old newspaper article quoting Mumia from back when he was sixteen years old and a member of the Black Panther Party, stating that political power grows out of the barrel of a gun and quoting Chairman Mao Zedong of the People’s Republic of China. Mumia was being interviewed at that time about the police assassination of Fred Hampton in Chicago. And the reporter asked this sixteen year old, who was eloquent even then, what do you make of this, and Mumia, citing Chairman Mao Zedong, said that political power grows out of the barrel of a gun. Seizing that twelve-year-old article, the prosecutor then held it before the jury and said, in effect, that what you have here is someone who is exercising political power by using a gun, twelve years after the article was published, when he was twenty-eight years old. And Mumia got the death penalty within one hour. Studies have shown that it’s tremendously difficult to get a fair trial when there is a killing and the victim is white, as in this case, and the accused is black. It’s even more difficult if the victim also happens to be a police officer, and it’s extraordinarily difficult if the prosecution can show that the defendant is dangerous and radical. That’s what the prosecution did in the Mumia case, by introducing a twelve-year-old article, quoting a sixteen-year-old boy, in the penalty phase. Has the Supreme Court spoken to this? Yes, they have. In the case of Dawson vs. Delaware, the state of Delaware got the death penalty against Dawson, who was a member of a white racist organization called the Aryan Brotherhood. The state had introduced the fact of his membership in the Aryan Brotherhood and he got the

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death penalty. The U.S. Supreme Court, in a vote of eight to one, said that his conviction cannot stand—the penalty cannot stand. In the United States, they said, we do not give the death penalty on the basis of someone’s politics, their political associations, or their political statements. Mumia asked to have his case joined with the Dawson case because the Dawson case in Delaware relied in part on Mumia’s case in Pennsylvania, citing Commonwealth vs. Jamal. The U.S. Supreme Court took the Dawson case, and they rejected Mumia’s case. So he remains, seventeen years later, on death row. For all of the issues I’ve raised, and I’ve only touched on some, our briefs are 500 pages in length. I haven’t gone into prosecutorial misconduct, I haven’t gotten into the witnesses who were denied, or the witnesses who came forward and said they perjured themselves. But this is a case that commands itself to your attention and to the attention not only of the country but of the world. RAY BROWN For about thirty years I’ve been talking as often as it was possible—or maybe necessary—to black kids, especially in high schools and in junior colleges, and I have had one question that I have posed on each of those innumerable occasions: What was the principal issue facing black folks around the time of World War II? And only once in thirty years have I gotten the right answer. People talk about employment and housing and all kinds of discrimination, but only once in thirty years has some kid had the curiosity to read, or listen to his parents while they talked, and remember that the answer is lynching. A fundamental question of due process you might say, and something that puts in perspective the nature of the struggle we have with the death penalty and with the high incarceration rates today. As children, we’re progeny of that practice we like to think is outlawed. I mention lynching in part to suggest that one of the interesting things about this collection of essays is that it gives us a chance to pose an interesting question, which is: Why have progressives been so unsuccessful in effectively articulating problems of justice and talking about them in ways that have meaning to ordinary folks and that can be effectively used to galvanize us? We are not the only ones who lack education about ourselves. The American Bar Association in 1985 did a study of college-educated folks, and two of the answers have always interested me—one is that more than 50 percent said that the president had the power to suspend the constitution in emergencies, and the other interesting one is that more than 50 percent thought that the following words were in the U.S. Constitution: “From each according to his ability and to each according to his means.” In the context of jobs, I was raised across the river from Philadelphia, in Jersey City, and for those of you who think that the other side of the Hudson River is Kansas, let me remind you that if you have been in southern New Jersey, you saw the big Colgate clock. There used to be a plant there with lots of jobs. When I was a child, not so long ago, lots of jobs were available there, for both semiskilled and unskilled labor. There was a Valentine plant within eyesight of where I was born.

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There was a Pabst Blue Ribbon plant, and a lot of beer was being produced over there. When I first started picking juries twenty-five years ago, many of the jurors came from the General Electric and Westinghouse plants that provided huge opportunities for people. None of those plants exist today; none of those jobs exist today. Instead, if you ride, as I do sometimes, the Amtrak—either the Metro Liner or the trains that are not on time, the unreserved trains—and you see downtown Newark and Philadelphia and Baltimore, you see a lot of gleaming spires and refurbished downtowns. They have got something I think of as an obscenity. The fact of the matter is that those gleaming spires do not provide jobs for the people who no longer work at General Electric and Westinghouse, and their children, who do not receive adequate training in schools, do not fit into the service-sector economy that supplies the jobs in those buildings. Why Mumia should be a galvanizing force for so many folks who have not responded to anything else is an interesting question. He’s an incredibly articulate black man, but he’s not the only one in that category. He writes well, but there are other black folks who write well. He’s on death row, but unhappily, of the 3500 folk on death row, 40 percent are black. So why is there such interest in his case? Let me suggest to you that sometimes we get caught up in the headlines. There’s something under discussion now that is a little less dramatic but infinitely trendier than the death penalty, and that is the question of racial profiling. It’s easy to see profiling as the problem of a few bad cops coupled with the maladministration of, say, the New Jersey State Police, which indeed has been a fascist organization since the 1930s. And of course the current governor has nominated for a spot on the state supreme court the attorney general who presided over the police organization for the last five years. And by the way, 80 percent of those searched on the turnpike are minorities. Those are astounding numbers, but they are not surprising if your eyes are open and you drive down the turnpike. But what does that mean? Is that an aberration? Is all we need a little twist, a few more blacks in the hierarchy? We know that’s nonsense, because one of the truths we don’t like to look at is that sometimes when minority folks become police officers, they become as vicious as some of the people they serve with. We can look at things, but as Bill Sales always used to say, quoting Emma Cabral—tell no lies, claim no easy victories. The truth is more complex than that. One of the interesting things about our Supreme Court, because it’s the one institution that should be above moral corruption, is that it has consistently looked in a benign way on the warrant requirement for the searching of homes under the Fourth Amendment. All the while it consistently whittles away the protections for those who move by common carriers on the highways and byways and buses and planes, because those common carriers carry common folk. The Supreme Court has also been willing to turn a blind eye if race was just one of the reasons for a stop, just one of the reasons for a search, as long as there was something else. And just a little while ago, what did the court do? Talk about individualized determination and probable cause: The police can now search you if you’re even a passenger in a car that they have a reason to stop. This just gives license to police officers, who are being asked to solve complex social problems that they have

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neither the clues nor the resources to solve. And so these are fundamental questions, not simple questions to be solved by finding some black guy who would be willing to head the New Jersey State Police, though those are the kinds of solutions that are going to be forthcoming after Christie Whitman runs for the Senate and promises to be nice to black folks. In the final analysis, we are left in the position of not having solved the problem of how it is that for black folks and for other communities of color and for other communities without resources, the choice is between being victimized by crime and being victimized by police: That’s not a real choice. The failure of progressive force is to provide analysis and to galvanize around that contradiction, because the truth that is your mother or your grandmother may be at risk if she goes to the store, and your son or your nephew is at risk from the police. That’s not a way to live. That’s not justice. A core concept is justice as a secular faith. The problem is that justice is not something you can eat or drink or ride home in. It’s an abstract concept, but it’s a critical concept, and if we don’t talk about social justice surrounding the temple of the secular faith, then it’s meaningless. Eighty billion dollars are spent on criminal justice–related activities, and nary a drop in that bucket is for the health care aspect of drug policy. There is also not a single mention of drug policy in the context of the health care debate that took place earlier in this administration. We have not been effective at articulating an agenda that addresses bread-and-butter issues as they relate to justice, and sometimes even people we think would have better sense get confused. I don’t apologize for having said it, violated any sense of proportion or Constitutional sense to impeach Clinton for what was obviously absurd but hardly significant conduct. Yet, this is the man who got elected to office by going to Arkansas and symbolically pulling the switch on a black man so retarded he said he would save his piece of pie and have it after his execution and also that he would vote for Bill Clinton in the upcoming election. Clinton is a man who passed the crime bill that Reagan and his ilk were unable to pass. One of the contradictions surfaced in 1995. I remember when one of the men who was a star of the legal profession was doing his best to keep the executioner at bay for Mumia, and there came a time in August 1995 when the movement toward the stay was getting narrow. A lot of us were going anywhere to talk about this—on any television program, places we wouldn’t be ordinarily talking about this issue— and people around the world were marching and talking about this issue incessantly. All of a sudden, a judge whose roots, his personal roots, lie in fascism, grants a stay. We have mixed feelings: It’s good to see a stay, it’s good to see a chance to fight again, but should judges grant stays on the basis of the number of people marching in the street? Is that due process? What happened is that there is a larger arena, and it’s in the larger arena that the hypocrisy plays itself out in its most graphic forms. The United States wants to be not just a part but a leader of an international community, so much so that it thinks that its mission is to be bombing Belgrade in the midst of what is at best a hypocritical claim that we’re fighting genocide. There are international forums like Amnesty International that say the way in which we house prisoners violates not just our Constitution but international norms. United Nations commissions echo what we

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have said for years about the death penalty being racist and improper—not just under our Constitution but according to international norms. Just looking at what we did in the Balkans in the name of the rule of law is curious. In 1991 a Republican Secretary of State said that Slobodan Milosevic was a war criminal. We know an accusation is not a formal charge, let alone a conviction, but prosecutors at The Hague have said since then that the United States has failed to turn over intelligence, for which it should be prosecuted. Not only did we sit down with Milosevic at Dayton, but no move was made to arrest others charged with genocide. We think that an apology is enough for not stopping the violence in Rwanda, where a million people were slaughtered in three months. Try to find some coverage of the activities of the Rwanda Tribunal even in the pages of the New York Times, and you’ll come up short. Court TV lost its shirt trying to televise the trials in the former Yugoslavia and quickly abandoned any thought of presenting the trials from Rwanda. Americans said, ‘We don’t mind a little violence, but they got to look like us and be like us.’ Because you know the reality of lynching was that people who wouldn’t commit another crime or wouldn’t steal an apple from a grocer would eviscerate a black man on a rumor because he was the other—he wasn’t like his persecutors. Finally, of course, men on death row are not like us—outstanding citizens who wear ties and nice clothes—so we don’t have to concern ourselves with whether the Constitution applies. And all those other guys in prison, they are not like us either, even though they happen to be my cousin or my nephew. Look at two recent victims of police violence in New York: A man named Diallo and a man named Louima. Not what we would call in the old days African Americans. What does that mean? Does it have implications? And are those additional challenges we have to overcome? I’ve spent a lot of time going to what are called continuing legal education events, in which lawyers figure out how to be more effective. The conversation at these events is more and more about how to deal with the problem of the noncitizen, because there is a separate constitutional standard for these individuals, and thus there is a separate set of problems as our courts make more and more distinctions. In East Orange, New Jersey, I have seen pitched battles in the middle of Central Avenue between African Americans and black folks of Caribbean descent because there isn’t political leadership in either community that steps up and says we have some broader issues. Three years ago the New Jersey Department of Corrections did a study and found an incredibly high correlation among juvenile offenders between low rates of literacy and math skills and high rates of incarceration. This study didn’t distinguish between various kinds of people of color; the few juvenile offenders who weren’t people of color were white folks who were poor, because class is relevant too, though we don’t like to talk about that. Maybe the most interesting case in the line of death penalty cases is that of McCleskey, the young black kid who was sentenced to death in Virginia. The Supreme Court was presented with overwhelming statistics about the racial realities of the death penalty—that the both victims and the race of the defendants determine

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whether or not a person is sentenced to death—and the court rejected that reason not just because of what it meant for the death penalty but because it meant that “we were then going to have to do something” about the prisons. If we can’t kill them because they are black, we can’t lock them up for that reason either. In the McCleskey case, Brennan, who filed a dissenting opinion and who was an Irishman from New Jersey—one of the most corrupt political machines in the history of this country— said that the majority was afraid of too much justice. The courts are in the process of abnegating their moral authority, which is why it is important also to talk about A. Leon Higginbotham: because his conversation with Clarence Thomas was about the moral and ethical reality that underlies this political struggle, because we tend to walk away from it, because our communities are increasingly fractured. The word Christian doesn’t mean so much as maybe the words Baptist or Catholic, and there are increasing numbers of Muslims in our community. We have to make common cause with folks who are Buddhists or who have totally other world views than many folks who say they see no God at all. But the ethical and moral questions remain, and if you go elsewhere in the world, you need ordinary folks who resolve issues by reference not to Karl Marx but to the Qur’an, to the Bible, and to other holy words. In addition, ethical and moral questions have to be raised and looked at in the context of economic issues. CHARLES OGLETREE Sometimes when we fail to understand history, we are doomed to repeat it. I think that if we really want to understand the case of Mumia Abu Jamal, we have to look back about twenty-seven or twenty-eight years ago and really understand what happened with Sister Angela Davis. I’m very much aware of that case because I was a student at Stanford University when she was arrested in California. I was going to school right across the street from where she was held in the Palo Alto women’s detention center and had the chance to visit with her and organize some young people in California to bring some political pressure to make sure that Angela Davis would not be railroaded like so many other political prisoners who had gone through the system in California. We confronted a lot in 1972, trying to defend Angela Davis and raise political consciousness. I was from California, a state, you may recall, that had a governor whose name was Ronald Reagan. This was a country that had the president whose name was Richard Nixon. And California was the state that had the president of the university called San Francisco State. It was a tough time in 1972, and for me, looking out as a student at Angela Davis’s trial, having seen George Jackson go to trial and go to prison for lack of $15, having seen his brother die, and having seen so many other political prisoners at San Quentin 6, just hundreds and hundreds of people go to prison, it was not a time to be optimistic. But when I went to the women’s detention center and saw Angela Davis, she was sitting there a symbol of defiance and strength, never once doubting that no matter what the jury said, she was not guilty of any crime and that they were not ultimately going to decide her fate. That was a very difficult time in America, and yet the lawyers who represented Davis were very good. She had black women and men representing her, including Margaret Buram,

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who quit her job at the NAACP Legal Defense Fund because they wouldn’t let her represent Angela Davis—she quit her job and went to California to defend Angela Davis on principle—that was important. Davis had great lawyers. She had a jury in San Jose, California, that was an all-white jury, but what she had on her side was a local, regional, national, and international movement that understood that we would not let anybody take away Angela Davis’s liberty or her life because we were willing to throw our bodies down in front of her to make sure that that didn’t happen. You can’t imagine a more difficult time than 1972 unless you look at 1999. There is something that is happening in the land today: America has gone insane when we talk about our criminal justice system. We have, as you’ve heard over and over, nearly two million people in prison. That figure in 1989 was one million—it has doubled in one decade, and in ten years we have twice as many people in prison as we have had in entire the history of our country. We have people who now see the criminal justice system as following them from the cradle to the grave or from the womb to the tomb because there is no justice in America. We have laws talking about racial profiling, and we talk about driving while black, but let me tell you that’s not the only problem facing America. If it were the only problem facing America, I wouldn’t be troubled. But it’s not just driving while black. If you live where I live, you know that it’s walking while black that’s a problem. You know it’s riding while black that’s a problem. Some of you know that it’s shopping while black that’s a problem. And some of you know that simply working while black can be a problem. In fact, it’s living while black that’s a problem in America. There is no community in America in which people of color are not examined and judged by their color. There is no safe haven. We talk about Roxbury and Harlem. We talk about South Central Los Angeles and Chicago. But this scrutiny happens in Cambridge and in Wellesley and Westchester. If you’re black or brown and you are in the wrong neighborhood, you are going to be a victim of some type of police suspicion that is not justified by law or by common sense or by justice. It’s not just walking and driving: I talk to my students all the time about drag courier profiles and try to give them an intellectual answer. And this is where I’m caught in this dilemma. I tell them that there is a case that has been decided for every one of the examples I give them: The law is not racist, it doesn’t discriminate. We can talk about race discrimination—it takes place from suspicion through to execution. It happens from the beginning of the time we’re in the system until the end of the time we’re in the system, and what we haven’t done as people who are black or brown or bilingual is to stand up and say that the death penalty as a penalty is insane, it’s unjust, and it’s discriminatory, and we have to get rid of it now, once and forever. CONRAD MUHAMMAD I’m glad that we were visionaries enough to have someone who represents the hiphop generation. I don’t like to say the youth, because in this society we don’t get a chance to be young that much any more. The children are old. The children grow up very quickly. When you look at society today, we, in the hip-hop generation—and that’s a term that we use, that speaks to this generation—often do not have the

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luxury of being young; we have come up in a very turbulent era, during turbulent times. So many people say to me, ‘Minister Conrad Muhammad you can’t organize young people today like they did in the sixties. Because there are no issues.’ Then I remind them: In 1966 Huey Newton and Bobby Seale formed the Black Panther Party for Self-Defense. What was the issue? What was the main objective of the Black Panther Party for Self-Defense? To fight against police brutality. In New York in 1999, what has really changed? Mayor Giuliani is attempting to do to New York what a man named Frank Rizzo did in Philadelphia, and you cannot talk about Mumia Abu Jamal, you cannot talk about Philadelphia, the city of brotherly love, without talking about a man who had a size 50 chest and a fascist mentality—Frank Rizzo. The only police cars probably more feared in the country than the New York City police cars were the light blue cars of the Philadelphia police department. Philadelphia, the city of brotherly love, is the only city in America where not only did a white mayor create a climate of fear but a black mayor, William Green, came in on the heels of that mentality and dropped a bomb on a row house in west Philadelphia to abuse and persecute the same group that brother Mumia is a part of. Intolerance existed in that day in Philadelphia, and Mayor Giuliani is attempting to create the same reality in New York City in 1999. We cannot sit idly by and allow that to happen. Whether it’s Amadou Diallo, Mumia Abu Jamal, or any other name that you could pick from the long list of those who are deprived of justice, we who are yet to face that situation must ourselves stand up and say we should not become involved in Mumia’s case, fighting for a new trial for him, simply because we like him. We also should not do it simply because we don’t like him. What we must do is take a stand as citizens of this country who love liberty because what visits the other man’s door today can come back and visit you tomorrow, and it’s a shame that often people don’t respond until something affects them personally. They are saying around the country now that crime is down, but, rather, what has happened in America is that they have criminalized and subsequently locked up a generation. Yes, it’s race related, yes it’s class related. That’s right. I don’t know about you, but I’m a logical thinker, and when the factories leave the cities and there is no employer in the inner cities to replace them, and corporations have moved to the suburbs, to rural areas, and into foreign countries, and yet people remain in these central communities, central cities. These people must feed their children, they must pay their rent, they must eke out some existence. If the dope man is the only one hiring, people will seek employment from him. This is an outrage and a shame that we have to address. Mumia Abu Jamal was poor, Mumia Abu Jamal was black, Mumia Abu Jamal was male: Race, class, gender. These are ills in our society. You hear politicians today say that crime is down, but when we look, we see the Rockefeller laws, and we see laws that have said that a young black person in the inner cities who sells a minuscule amount of crack has to go away for a long, mandatory sentence, while those who engage in powder cocaine—the drug of a higher socioeconomic class—often get suspended sentences. That disparity tells me that we have grave problems in the criminal

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justice system, and I’m glad that Mumia’s case can crystallize our interest in that system, our interest in changing that system, but those of you who are members of the hip-hop generation, you should recognize and understand that we have lost a whole generation of young black males—and now, increasingly, women—to the prison system. The lack of economic ingenuity and creativity on the part of the political leaders of this county has caused the direction of public policy to go in the direction of building jails and not schools. Some of the upstate towns in New York State base their sole economic development on the buildup of a prison–industrial complex in their cities. This is an outrage, and we must do more than raise our voices: We’ve got to march, we have got to go to jail. We have got to become more politically involved in this governmental system. I’m speaking now to young people. We can no longer engage any longer in a ghetto fabulous bubble—something has to burst it—nor can we engage in the Ivy League professional, corporate suit fantasy that makes us believe that we are immune to addressing some of these issues. The Bible says that to whom much is given, much is required, and that’s why I love men like Thurgood Marshall and Charles Hamilton Houston, because they were not from the bottom rail of society. Judge Leon Higgbotham didn’t fight for justice because he had to. He fought for justice because he understood that he had a responsibility: Those who have been given much have a responsibility to do more. Finally, it costs less money to educate a young person in this society at Harvard or Yale—much less sending them to city college or some other state university—than it does to imprison them for one year in this country, but America is a place that wants it two ways. I have evolved to the point where I don’t indict this country anymore per se. I used to. I spent long hours doing it and became quite eloquent at it, but one of the things that I’ve realized is that in spite of the warts, the problems, one of the things I like about this nation is that we have a right to agitate, to organize, and to change the system of government into whatever we want it to be if we are able to stay vigilant and become active. So if you don’t like America the way it is, you don’t have to leave it. Those who say like it, love it, or leave it are wrong: We don’t have to like it the way it is. We can work to change it and to make it what it should be.

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WOMEN, VIOLENCE, AND INCARCERATION

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THE EFFECT OF THE PRISON-INDUSTRIAL COMPLEX ON AFRICAN AMERICAN WOMEN Natalie J. Sokoloff

The imprisonment of millions of human beings is a fact of life today in the United States. According to Marc Mauer, mass imprisonment, beginning in the early 1970s, is the second Great Experiment in prison history—the first being the movement of punishment of offenders from the streets into penitentiaries in the late eighteenth to early nineteenth centuries.1 David Garland suggests that what is unique about today’s mass imprisonment is its sheer numbers (over 2 million people are incarcerated in federal and state prisons and local jails) and its “systemic imprisonment of whole groups of the population.”2 Thus, he argues, 30 percent of all young black men born today can anticipate spending some time in prison. Not only does this structure the African American experience, it also has a devastating social effect on whole neighborhoods and communities. How does all this affect women in African American communities? I answer this question by looking at women in prison, women left behind in communities when men and women in their households and communities end up in prison, and women as they leave prison and reenter home communities. The prison–industrial complex is a cornerstone of the conservative neoliberal policies emerging in the age of globalization, which has been emerging since the early 1970s, has increased the disenfranchisement of marginalized black and Latino/a communities, and is responsible, in large part, for the situation facing black women involved with the prison system today.3 Elsewhere I describe the forces that are responsible for the rise in imprisonment rates since the early 1970s: the racialized war on drugs, the harsh laws and mandatory sentences in a conservative era, economic restructuring, globalization, and the prison–industrial complex.4 According to Steven Donziger, the prison–industrial complex is a set of bureaucratic, economic, and political interests that encourage spending on prisons, regardless of need.5 Sudbury says the prison–industrial complex refers to a “symbiotic and profitable

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relationship between politicians [state and national], corporations [executives and shareholders], the media, and state correctional institutions [including correctional officers’ unions] that generates the racialized use of incarceration as a response to social problems rooted in the globalization of capital.”6 EFFECT OF THE SECOND GREAT EXPERIMENT IN PRISON HISTORY ON WOMEN TODAY To understand the effects of the second Great Experiment in prison history on black women today, we need to look at what happens to black women in prison, to those who are left behind in—and carry out the work of—the community when members of their community go to prison, and to black women as they leave prison to return to their typically beleaguered communities. The conditions that women experience in prison, for the most part, are horrendous: poor health services; inadequate or nonexistent drug abuse programs; inadequate educational programs; limited occupational training and jobs that do not make women ready for decent, viable employment back in their communities; lack of attention to physically, sexually, and emotionally abused women; and vulnerability to the physical absence and legal loss of their children. Here I discuss a few examples of the effect that incarceration has on black women while they are in prison. Increases in the Numbers of Poor Black Women in Prison

At the beginning of the second Great Experiment in prison history in 1970, there were only 5,600 women in prison.7 That number had risen to 94,336—a seventeenfold increase in women’s imprisonment—by 2001. Add to that another 72,621 women put in jail during 2001, and 167,000 women were incarcerated in the United States by the end of the year.8 In addition, over 800,000 more women are on probation and parole.9 In short, the numbers are quite dramatic: Almost 1 million women are under the control of the criminal justice system today. These numbers are heavily biased against black women: Although almost half of the female prison population is black, only 13 percent of the U.S. female population is black,10 and when Latinas/Latinos are included in the figures, they and blacks make up 62 percent of the incarcerated population, though they make up only 25 percent of the national population.11 Not only are the numbers of poor black women increasing in prison but the women are there primarily for nonviolent offenses (larceny-theft, forgery, fraud, prostitution, and drugs) that could better be handled outside of prison.12 By 1994, almost 5 percent of all young black women ages 20–29 years old were under the control of the criminal justice system—in jail, prison, on probation, or parole. This is much more than half the rate of young white men (6.7 percent).13 Women are increasingly being incarcerated for drugs. In the case of black and Latina women, this is quite dramatic—and especially so in the state of New York, where 91 percent of all women prisoners sentenced for drugs were black and Latina (although they made up only 32 percent of the state’s female population).14 In 1995,

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almost two out of three black women (65 percent) sentenced to prison were convicted of drug charges, as were four out of five (82 percent) Latina women. By 1997, overall, 59 percent of women in New York State prisons were serving sentences for drug convictions, which was true ofor 77 percent of Latinas and 34 percent of white women.15 In short, the racialized war on drugs is as described in the title of Stephanie Bush-Baskette’s (1998) article, “The War on Drugs as a War against Black Women.”16 Despite the images of violent female offenders hitting the front pages,17 the truth is that much of the increase in the incarceration of supposedly violent women is due to the increasing numbers of traditionally nonviolent behaviors that are now artificially included in the category of “violent” offenders. According to Darrell Steffensmeier and Jennifer Schwartz, the inclusion of these behaviors is misleading because the changes in violent crimes “largely reflect changing attitudes and enforcement practices,” not increases in violent behavior by women.18 In fact, the authors argue, the numbers of women incarcerated for violent offenses in state prisons have decreased over time, with less than 30 percent of all female inmates imprisoned in the United States for a violent offense, compared to 41 percent over a decade ago. Moreover, the overall percentage of women imprisoned for murder, assault, weapons, or robbery has not increased since the mid-1980s. In fact, for murder, the percentage of women in prison has decreased from 13 percent in 1986 to 9 percent in 1999.19 Of course, one of the reasons the inclusion of a selection of nonviolent offenses under the category of violent crimes is such a tragedy is that all the consequences that flow from incarceration are magnified for women in the black community when they are back on the outside: stigma, possible loss of parental rights, and greater difficulty in getting an education, a job, and housing. Exposes Women to Inadequate Health Care and Infectious Diseases

Several of the issues becoming more apparent as larger numbers of women—and particularly black and Latina women—are incarcerated are described here. First, with such a disproportionate number of black women in prison, not only are larger numbers of black women infected with HIV/AIDS but they are also placed in close proximity with other women with high rates of infectious and chronic diseases, thereby endangering their physical and related emotional health. This says nothing of the inadequate health care services to handle these and even the more basic health problems of imprisoned women.20 Moreover, the high rate of physical and sexual abuse and trauma experienced by women before their entering prison is exacerbated by the fact that inadequate services exist for these women to deal with these issues at the same time that they are made vulnerable to abuse and assault by prison staff. Exposes Women to Rape, Sexual Harassment, and Coercion

Although sexual abuse at the hands of male guards is nothing new, the sexual victimization of female prisoners has been recognized as a problem of growing seriousness since the early 1990s.21 One of the greatest tragedies here is that many

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women prisoners were victimized by fathers, husbands, neighbors, and partners, only to be victimized again by guards and other staff in prison—sexually, physically (e.g., through “legal” and “illegal” strip searches as well as “pat downs”), and emotionally. As the largest single population in prison, African American women experience more of this type of violence than any other group. Reports by Amnesty International, Human Rights Watch, an independent fact-finder for the United Nations (Radhika Coomaraswamy), and numerous federal, state, and local reports on sexual misconduct of prison staff detail instances of what some have called outright torture: from rape and other sexual abuse; to dangerous shackling of women, including while they are giving birth; to demeaning strip searches. According to Amnesty International’s report, over 1000 such cases of abuse were reported in a recent three-year period, with far more incidents not being reported for fear of official retaliation.22 Provides Women Inadequate Treatment for Drug Addiction

In discussing women’s pathways to crime, drugs and violence have figured prominently, with drugs often being used in an attempt to heal the pain of the violence experienced by these women.23 Although one in three women are incarcerated for violating drug laws (and two-thirds of the women in federal prisons are incarcerated for drug offenses), black women are incarcerated at eight times the rate of white women (and Latinas at 3.5 times the white women’s rate).24 The devastation caused by drugs, in combination with poverty and racism, in the lives of black and Latina women is attested to eloquently in Beth Richie’s recent article on the problems women face when they reenter home communities after prison. The need for substance abuse treatment is paramount for women in prison, and yet only 10 percent of drug-abusing women are offered any real drug abuse treatment in prison or jail, leaving them vulnerable to returning to drugs both inside and outside the prisons.25 Several years ago, the Rand Corporation found that drug abuse treatment programs were seven times more effective in helping people to stop abusing drugs than was incarceration.26 So many black and Latina women end up in prison for drugs or drug-related crimes, it makes us realize even better the negative effect of imprisonment on black women in the United States. As with health care, drug abuse treatment, analysis, and prevention of violence against women, there are gaps in meeting the education, occupational training, and other needs of women in prison. The programs that do exist are inadequate at best, and those that have helped are being heavily cut back.27 After decades of struggling for gender-specific programming and parity in resources and opportunities for women in prison, even successful programs like the one in St. Paul, Minnesota, which “after 21 years of carving a national reputation as a trailblazer and innovator for women and juvenile female offender issues at the state level,” which came to an end in early 2003 because of budget cuts, are being eliminated.28

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Makes It Difficult to Maintain Contact With and Custody of Children

The vast majority of women in prison are mothers with children under the age of eighteen years (70 percent). Almost two-thirds (64 percent) of these mothers lived with their children before incarceration, and one-third was the sole parent living with their children. With just over one-quarter (28 percent) of children of incarcerated mothers being cared for by their fathers, most children of imprisoned mothers are cared for by other people—primarily grandmothers, but also other relatives. Still, 10 percent of the children of incarcerated mothers end up in foster care or in an agency.29 Reunification laws became even more punitive in 1997 under the Adoption and Safe Families Act (ASFA), which states that if a mother does not have contact with a child for six months, she can be charged with “abandonment” and lose rights to her child. Likewise, if a child has been in foster care for fifteen of the prior twenty-two months, the state may begin proceedings to terminate parental rights.30 However, women are often transferred from one facility to another, which causes them to miss important deadlines and court dates, which in turn can result in termination of their parental rights. Moreover, it is often hard for caregivers to bring children to the prison because of distance to travel and the cost of getting there, and some caregivers purposefully fail to bring the children for fear that it would harm them to see their mother in those conditions. The threat of incarcerated women losing their children is quite real. Given that about half of the women (and the men) in prison are black, it is black children who suffer the most. In fact, a full 7 percent of black children currently have a parent in prison. Black children are nine times more likely, and Latino/a children (2.6 percent with parents in prison) are 2.6 times more likely, than white children (0.8 percent with parents in prison) to have a parent in prison.31 Diminishes Women’s Opportunities for Numerous Services, Programs, and Rights

Clearly, there are many more misfortunes and dangers that face women in prison— whether in terms of the lack of adequate educational and occupational training, or the loss of even the small number of hard-won programs, or the loss of their rights to vote while incarcerated—and all these issues resonate more harshly with racialized women who come from disadvantaged black and Latino/a communities.32 EFFECTS ON BLACK WOMEN BACK IN THE COMMUNITY Removal of Resources for Women Who Remain in the Community

The effect of the prison–industrial complex on women who remain in the community while men and women in their families are incarcerated is tremendous. Not only does it take men and women out of the community who are greatly needed for their contributions to household income, child care, elder care, and emotional support, but it also diminishes the job opportunities for women who remain in the community.33 Poor black, Latino/a, and other urban minority communities lose population, income, political power, and government funds to the poor or struggling rural white

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communities where new prisons have been built in the last thirty to thirty-five years. This happens because economic restructuring and globalization lead to the loss of industrial jobs for poor minority inner-city folks as well as the loss of agricultural and other rural jobs (mining, logging, factories) for poor white rural folks.34 The development of prisons in these rural communities leads to the removal of poor black and Latino/a people from the inner-city to become prisoners guarded by poor white people from the hinterlands. Not only does this provide jobs for the latter, using black and brown bodies, but it reapportions federal funding from inner cities to rural communities, thereby weakening both the economic and the political strength of the inner city. How does all this affect black women in particular? The financial and material losses to the women back in the community are significant. According to Braman, even though family members sent to prison typically earn poverty wages, the family’s household income is still diminished by the elimination of these wages.35 In addition, as the prisoner’s lifetime earning potential is lowered, the left-behind women (and men and children) in that family will suffer as well. Also, the savings of the offender’s family are depleted, as left-behind women must depend on these resources for survival needs when their partner is in prison. This reduces the ability of parents to pass on whatever minimal wealth they might have to their children (and grandchildren), thereby draining resources of the women at home as well as of their extended family members. Social services, welfare, health, and education are resources that are very much needed in marginalized, poor, working-class, and middle-class communities of color.36 However, with the transfer of funds from poor inner-city black and Latino/a communities to poor, white, rural communities—where the prisons are located and where the census counts prisoners as residing—cutbacks in each of these areas makes it increasingly more difficult to make ends meet for those women who remain in the community and who have to pick up the pieces that are left behind by the family and friends who end up in prisons that are usually far away from their home communities.37 In a Democratic administration under President Bill Clinton, a tremendous erosion of welfare benefits occurred. Add to this the greater hardships imposed on poor and minority communities by President George W. Bush, and there is even greater hardship in these areas, as his conservative agenda and his “war on terrorism” have created a huge deficit requiring even more belt-tightening and hardship by the black and Latina (and poor white) women who are surviving in urban areas without their compatriots, who are in prison. Finally, it is important to understand the stigma and hardships women face because of their family member’s criminal conviction. The struggles the women experience are summed up in the title of a newspaper article written twenty years ago, “Guilt by Marriage: Many Convicts’ Wives Can’t Get Work, Housing, or Insurance.”38 Loss of Economic Employment

In addition to the greater financial burdens resting on their shoulders, funding for the prison–industrial complex also diminishes job opportunities for women who remain in the community. In “Three Strikes and It’s Women Who Are Out,” Mona

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Danner argues that the “three strikes laws” common across the country now lead to harsh consequences for women who are outside the prison system itself.39 In particular, there is a loss of welfare supports for the poorest women in U.S. society (some of who end up in prison); a loss of much needed traditional “women’s” jobs available to poor, middle-class, and minority women; and a loss of family supports, both financial and emotional, as federal and state governments become less able to provide public assistance or public employment. One of the ways that black women were able to take a foothold in the post–civil rights and post–women’s liberation movement economy was through the expansion of new jobs, many of which were traditional female types of work, and in public-sector employment in social services, welfare, education, and health care; this was true for professional and nonprofessional work alike.40 However, argues Danner, just as women are more likely to be recipients of social services, women likewise are more likely to be employed in social service agencies as social workers, case workers, counselors, and support staff. But with the expansion of jobs in criminal justice came serious cutbacks in social services, which has traditionally been a important location for black female employment.41 In 2003, the shift from the war on drugs and crime to the war on terrorism lead to even more service sector job losses.42 In addition, Higginbotham shows that black women who have made it into the service sector professions are typically employed in typically female jobs (e.g., nursing, social work, and education) and in heavily black communities. When black women are able to make it into typically male professions, they are segregated into offices and areas of the community that are heavily black and significantly poorer than in white firms and communities. All too often, this kind of segregation of labor also leads to segregation of resources by these firms, so cutbacks in these areas are particularly damning for poor black communities.43 In addition, workfare has been another way in which women in poor black communities have been required to obtain any kind of welfare payments, which also were severely cut by the 1996 Personal Responsibility and Work Opportunity and Reconciliation Act. One of the major problems with workfare is that it does not allow most women in it to get an education and training for good, well-paying, longterm jobs with decent benefits. In New York City, it has been reported that women receiving workfare do the same job as a regular city employee only to receive much less pay and no benefits and to lose the job just before the point at which they might be taken on as a permanent employee. Who Will Care for All the Children Left Behind by Prisoners?

As we saw earlier, 7 percent of all black children have a parent in prison. It is estimated that of the 1.5 million children with a mother or father in prison, 767,200 are black, 301,600 are Latino/a, and 384,500 are white. Mothers in prison leave 150,000 minor children behind, and fathers leave around 1.5 million minor children behind to be cared for by wives, grandmothers, sisters, aunts, and girlfriends. When men go to prison, nine of ten of their children are cared for by the children’s own mothers, but when women go to prison, only a little over one-quarter of the fathers

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(28 percent) care for their children. Instead, the mother of the prisoner—that is, the children’s maternal grandmother—is the person most likely to take on responsibility for the care and upbringing of those children; the second choice are other female kin. Ten percent of the children of prisoners end up in foster care or agencies.44 In addition, grandmothers—who are women who have already done their childrearing— face additional hardships, which were recently poignantly described by the New York Times.45 The financial, emotional, and physical strains are tremendous for these women and their families. Women Are Left Behind in Less Stable Communities

When we look at the effect of the prison–industrial complex on women in communities, we need to look at the communities themselves and how they are initially disadvantaged in terms of society’s economic, political, educational, and occupational systems. As well, we must see how these communities are the severely disadvantaged contexts within which large groups of black and poor women struggle to survive. Reallocation of Community Funds Because of the politics of the prison–industrial complex, money that is usually designated for the residents of poorer minority communities is taken away from these communities and placed in “prison” communities as a result of public laws regarding definitions of “residence.” The U.S. Bureau of the Census redefines prisoners from poor urban minority communities as living in the region in which they are imprisoned (which is usually far from their homes). The law then transfers funds from the prisoner’s home community to the community in which the prison resides, thereby taking much-needed funds from home communities while the prisoner is locked away and unable to contribute to his or her family.46 This decrease in funding has serious consequences for the community. Women remaining in these racialized poor communities need more, not fewer, services to be available while their partners and relatives are in prison, and for all practical purposes, prisoners return to the communities they left upon incarceration. But the money to support the services that the exoffenders and their communities need for a prisoner’s reentry will not be available because the funds will already have been given to the community in which the prison is located. This has huge implications for the meeting of the basic material resource needs in communities, as so many prisoners are released each year and in such a manner that their release is concentrated once again in poor, minority communities. At current count, the U.S. system of incarceration releases about 600,000 prisoners per year across the country. Voting Rights As communities that suffer severe shortages in every material aspect of life, the poor, minority communities are beset by further losses of economic and political influence because of the large numbers of their residents who are involved in the criminal justice system. Most felons cannot vote: In thirteen states, some or all exfelons cannot vote, and even when they can, both the individuals and the communities are not well informed about these possibilities.47 For example, 5 percent of all black women are

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under the control of the criminal justice system. In addition, 10 percent of young black men in their twenties live behind bars, and another 20 percent are under the control of the criminal justice system. Thus, between one-fourth and one-third of all young black men in their twenties in some states cannot vote, and in some cities— like Baltimore—56 percent of young black men are disenfranchised.48 Although it is clear that individuals in prison lose their right to vote, what is often forgotten is that this affects whole communities—not just the individuals themselves. Because people in prison come from a small number of specific communities, primarily in poor, minority, urban areas, the loss of political rights in a community is highly concentrated. In New York State, for example, two-thirds of all male prisoners come from seven communities in New York City.49 As more women and men from these practically all black and Latino/a communities are placed in prisons upstate, far from their homes, the basic political and related rights and opportunities of citizens in these communities are seriously compromised. The basic rights of an American citizen are denied to most people with a record. Although there are efforts underway to resecure a prisoner’s right to vote, the reality is that about 4 million individuals with felony convictions still do not have the right to vote because of their prison records.50 The Consequences of Overincarceration for Communities The criminal justice system operates on the belief that when someone is incarcerated, punishment for that crime has occurred and further crimes have been prevented because a person is no longer in the community. However, according to Todd Clear, there is a “tipping point,” after which the number of people in prison is too high so that crime is furthered rather than prevented by incarceration. In short, in the very communities where women are struggling so hard to survive with the limited resources and overabundance of responsibilities, incarceration actually harms communities by increasing rather than decreasing crime. EFFECTS ON WOMEN COMING OUT OF PRISON The communities that are left behind while men and women are incarcerated are the very same communities to which black women and men must come home. In this section I focus on some of the significant problems plaguing black women as they reenter their home communities. Some of these problems are the very same ones that all women and men experience on their return from prison, but some are gendered and raced and unique to black women prisoners as they reenter their marginalized communities. Because one of the greatest effects on black women’s reentry to home communities is a result of the war on drugs, I limit my comments here mainly to these issues. Special Problems of the War on Drugs as a War against Black Women as They Reintegrate into Their Communities

There are 13 million former and current prisoners living in the United States today. Approximately 600,000 prisoners are released from jail and prison back into their

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communities every year, and a majority of these individuals come from impoverished, minority, inner-city communities. When prisoners are released, they often have serious problems with substance abuse, mental health, and low education skills. They need employment and housing, which are hard to obtain given their personal problems. The communities to which they return are likewise in very poor condition.51 As Beth Richie notes, most women returning from prison return to the very same conditions they left when they entered prison: disenfranchised communities with limited economic, social, and political resources. Affordable housing, jobs, and health care are limited at best, and seriously limited community resources are further limited by the women’s criminal records. Forbidden to Live in Publicly Funded Housing

Amidst this context, the war on drugs has placed almost impossible burdens on the backs of black and Latina women who are leaving prison with drug convictions. First, the law grants public housing agencies the right to deny such housing to drug exoffenders—whether in their own apartment or in someone else’s until they get on their feet. However, as so many of the women in prison were either homeless (up to 40 percent in some studies) or inadequately housed before they went to prison, one of their very few options is to find or return to publicly subsidized housing. Thanks to the war on drugs, this is often no longer possible. Nor can they stay with their mothers, grandmothers, partners, friends, relatives, or children who live in public housing, because if they try to do so, the entire family can be evicted, not just the exoffender.52 Forbidden to Receive Cash Assistance and Food Stamps

Second, the 1996 Welfare Reform Act (i.e., the Personal Responsibility and Work Opportunity and Reconciliation Act) put a lifetime ban on cash assistance and food stamps for anyone convicted of a drug felony. Although states can opt out of this aspect of the Act, forty-two states currently enforce the ban either in full (twenty-two states) or in part (twenty states); only eight states have completely opted out of the ban.53 Between 1996 and 1999, The Sentencing Project estimates that 92,000 women were affected by the ban in the 23 states for which the project was able to get data.54 As the researchers conclude, this ban has had a disproportionate effect on black mothers because of the racially biased drug policies and enforcement of drug laws, which account for the rapid growth of African American women and Latinas under criminal justice supervision, and as a result of race and gender-based socioeconomic inequalities, which make black and Latina mothers highly susceptible to poverty and, thus, disproportionately represented in the welfare system. Forbidden Federal Financial Assistance for Higher Education

One of the major reasons for the difficult position poor minority women find themselved in is their lack of an adequate education, and we know that the best preventative for ending up in or returning to prison is increasing levels of education.55 In the

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conservative environment of the mid- to late 1990s, prisons began cutting back on education programs generally, and for prisoners specifically. Federal Pell grants, which allowed prisoners to get a college education, were summarily eliminated.56 Conservatives pushed the idea that prisoners should not get a “free” education when poor and working-class people who obeyed the law were not able to get a higher education. Thus, the heavily black and Latino/a prison population was punished. In the late 1990s, the law was amended such that anyone (whether in prison or not) who had been convicted of a drug offense could not get government funding for education. The law has been interpreted to read that anyone who even failed to answer the question about being a drug offender or not would not get federal financial assistance—even if the person never had a drug conviction. Prohibitions Against Certain Employment

Many jobs for which poor black women with limited education might have the greatest chance of obtaining are prohibited by law for anyone who has a felony— whether for drugs, shoplifting, or petty fraud. In New York State, these include such jobs as home health aides, nursing attendants, and nursery school assistants. In Pennsylvania, this includes working in nursing homes or doing home health care for the elderly—two jobs that are heavily black and female.57 This is a crushing blow for many young women returning to their communities from prison. Black women who have faced racial segregation in the past—in terms of education—also face it in the present—in terms of which jobs they will not be allowed to perform on the basis of their conviction.58 Ineligibility for Victim Services

Being an exoffender in a black or Latino/a community has many disadvantages for women. One of the last examples I will give revolves around the fact that some victim services agencies refuse treatment and resources to women with a prison record. According to Beth Richie, some victims services programs do background checks when women call for help because the terms of their funding do not permit them to provide services to exprisoners. This is true for both health care and mental health care programs. This is particularly horrendous for black women because they have some of the highest rates of victimization in this country—whether in terms of rape, domestic violence, murder, or harassment.59 According to multicultural domestic violence scholars, it is not “black culture” per se that leads to such high rates of violence against black women but, rather, the intensity of poverty, segregation, and isolation within poor black communities.60 Cumulative Effects of the Laws and Complexity of Problems

The difficulties and challenges of reintegrating into home communities for black and Latina women returning from prison are eloquently discussed by women in Beth Richie’s recent ethnographic study of forty-two women arrested and released at least three times from and into severely disenfranchised communities. These women

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describe the multiple competing demands on them as they simultaneously try to regain custody of children, juggle childcare, look for a place to live and to work, and try to get into a substance abuse program, which is a condition of their release (on probation or parole). To quote Richie, “The woman will need an apartment to regain custody of her children, she will need a job to get an apartment, she will need to get treatment for her addiction to be able to work, and initial contact with her children may only be possible during business hours if they are in custody of the state. The demands multiply and compound each other, and services are typically offered by agencies in different locations. Competing needs without any social support to meet them may seriously limit a woman’s chances for success in the challenging process of reintegration.” All of this is happening in communities that are in great need for economic, political, and social change. Thus, as Richie continues, the move of black women back to their communities from prison is impeded by institutional constraints: a bleak future for public housing, increased limitations on opportunities for public assistance, the curtailment of legal assistance, and changes in Medicaid and managed health care that result in limited access to health and mental health services. Women with criminal records who are facing the competing demands previously described are arguably in one of the worst positions to secure the services they need, both because their communities’ resources are so seriously limited and because their criminal record further inhibits their access to services.”61 The Negative Consequences for the Children in Marginalized Communities

One of the greatest tragedies of the effect of the prison–industrial complex on black women is the consequences for their children. Research tells us that 50 percent of young people in juvenile correctional facilities today have a parent or close relative in prison.62 Moreover, about 40 percent of adults in prison also have a parent or close relative who was or is in prison.63 With over 1.5 million children having mothers or fathers in prison today, the figure swells to 10 million children who have had a parent in prison,64 and with seven times as many black children as white children having a parent incarcerated, this burden falls most harshly on black children in the United States. Moreover, Katherine Luke enumerates the extra burdens that children of incarcerated mothers and fathers bear. They are “at increased risk for a variety of personally and socially destructive outcomes. Behavioral and institutional problems, school problems, fear, anxiety, anger, sadness and guilt are within the normal range of experiences for children of incarcerated parents, as are abuse of chemicals at a young age, early sexual activity, teen pregnancy, truancy and juvenile delinquency.” Cynics have argued that the children are simply following in their imprisoned parents’ footsteps and that there is nothing we can do about this. However, a more sociological analysis asks us to look at the underlying conditions of the communities these young people live in, which have been devastated by limited opportunities and resources as well as by the racism and class bias structured into their daily lives. Again, it is important to remember that when we talk about poverty, we are not necessarily

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talking about the same thing for poor whites and poor blacks. Only 25 percent of poor whites live in poor white neighborhoods; poor whites are much more likely to live in neighborhoods with working-class and middle-class families, role models, and resources. In contrast, 75 percent of poor blacks live in poor black communities that have been devastated by the lack of resources, opportunities, and structures to keep them safe from the disadvantaged living circumstances and crime that occurs.65 This is not a legacy we should be leaving our children at the beginning of the twenty-first century. WHERE DO WE GO FROM HERE? Since the second Great Experiment in prison history began in 1970, economic restructuring and globalization have been accompanied by a decline in many welfare state resources. This decline has hit poor minority communities hardest and in a multitude of ways. There is a clear and present need for massive redistribution of wealth from the rich to the poor, from the prison–industrial complex and the war on drugs to social spending in health, education, jobs, and welfare for poor and racialized communities on the margins. This is even more true today under the administration of President George W. Bush, where the federal surplus has been torpedoed into a multi–trillion dollar budget deficit, all the while benefiting the wealthy few more and more as those at the margins suffer greater hardships and more punishment. We know what we need to do to prevent the massive buildup of poor black, Latina, and white women in prison. First, we need both prevention in the community and programs in the prisons that provide comprehensive resources and programs for culturally competent and antiracist and feminist drug treatment, education, job training, health care, and domestic violence and abuse programs, as well as transitional services back into the community for women (and men) leaving prison. Second, in the communities, we need decent affordable housing, shelters for battered and raped women, safe affordable childcare, safe neighborhoods, and infrastructures that can transform poor neighborhoods. Third, we need to eliminate mandatory minimums, three strikes, truth-in-sentencing, and other discriminatory laws; decriminalize drugs and prostitution and provide alternative sentencing; and put an end to all prohibitions on people after they have served their time including limits on welfare, housing, jobs, voting, child custody, and food stamps. Ultimately, we need to do away with prisons themselves. Fourth, we need training, resources, and hope— both inside and outside prison. None of this will “just happen.” It will take tremendous political will, social action, and social movements. It requires coalition building between communities of color, reformist women’s organizations, African American and other faith communities, and progressive organizations. We can—we must—be prepared to take action now. NOTES 1. Marc Mauer, Race to Incarcerate (New York: New Press, 1999); and Mauer, “The Causes and Consequences of Prison Growth in the United States,” Punishment & Society (2001): 9–20.

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2. David Garland, “Introduction: The Meaning of Mass Imprisonment,” Punishment & Society (2001): 5–8. For statistics, see Paige Harrison and Jennifer Karberg, Prison and Jail Inmates at Midyear 2002 (Washington, DC: U.S. Department of Justice, 2003). 3. Native Americans are also disproportionately imprisoned, but their overall numbers are much smaller. Poor whites suffer also—but not to the same extent as blacks, Latinos, and Native Americans. Although we know the most about black disenfranchisement and punishment through the legal system, it is becoming increasingly clear that it is not just black women, but black and Latina women, who are heavily incarcerated, especially because of the war on drugs. Where possible, evidence relating to Latinas will also be included. 4. See Natalie J. Sokoloff, Mass Imprisonment and Its Impact on Women of Color in the U.S. (unpublished manuscript, 2003); and Julia Sudbury, “Women of Color, Globalization, and the Politics of Incarceration,” in The Criminal Justice System and Women: Offenders, Prisoners, Victims, Workers, 3rd ed., ed. Barbara Raffel Price and Sokoloff (New York: McGraw-Hill, 2003), 13. 5. Steven Donziger, ed., The Real War on Crime: The Report of the National Criminal Justice Commission (New York: HarperCollins, 1996). 6. Sudbury, “Women of Color,” 13. 7. Elliott Currie, Crime and Punishment in America (New York: Henry Holt, 1998). 8. Allen J. Beck et al., Prison and Jail Inmates at Midyear 2001 (Washington, DC: U.S. Department of Justice, 2002). 9. Lawrence Greenfeld and Tracy Snell, Women Offenders (Washington, DC: U.S. Department of Justice, 1999). 10. Harrison and Beck, Prisoners in 2001 (Washington, DC: U.S. Department of Justice, 2002). 11. Bonzcar and Beck, Lifetime Likelihood of Going to State or Federal Prison (Washington, DC: U.S. Department of Justice, 1997) and “U.S.: Incarceration Rates Reveal Striking Racial Disparities,” Human Rights News (http://www.hrw.org). 12. Darrell Steffensmeier and Jennifer Schwartz, “Trends in Female Crime: Is Crime Still a Man’s World?” in Price and Sokoloff, eds., The Criminal Justice System. 13. In contrast, the rate for Latinas was 2.2 percent, and for white women, 1 percent. Marc Mauer and Tracy Huling, Young Black Americans and the Criminal Justice System: Five Years Later (Washington, DC: The Sentencing Project, 1995). 14. Women of Color Policy Network, “Women of Color in New York City: The Challenges of the New Global Economy,” Roundtable of Institutions of People of Color, Robert F. Wagner School of Public Service at New York University (March, 2001). 15. Marc Mauer et al., Gender and Justice: Women, Drugs, and Sentencing Policy (Washington, DC: The Sentencing Project, 1999). 16. Stephanie Bush-Baskette, “War on Drugs: A War Against Black Women,” in Susan L. Miller, ed., Crime Control and Women: Feminist Implications of Criminal Justice Policy (Thousand Oaks, CA: Sage, 1998), 113–29. 17. Sokoloff, “Violent Female Offenders in New York City: Myths and Facts,” in A. Karmen, ed., Crime and Justice in New York City, vol. 1 (Cincinnati: Thompson, 2001), 132–46. 18. Steffensmeier and Schwartz, “Trends in Female Crime,” 13. 19. In New York State, during the same period, violent female crime declined from 49 percent to 18 percent. Lisa Maher, Sexed Work: Gender, Race and Resistance in a Brooklyn Drug Market (Oxford: Oxford University Press, 1997).

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20. According to Women of Color Policy Network, for example, 59 percent of all women with AIDS in New York City in 1999 were black (compared to 32 percent who were Latina and only 9 percent who were white). See Nicholas Freudenberg, “Adverse Effects of U.S. Jail and Prison Policies on the Health and Well-Being of Women of Color,” American Journal of Public Health 92 (2002): 1895–97; and Beth Richie, Compelled to Crime: The Gender Entrapment of Battered Black Women (New York: Routledge, 1996). 21. Neil Websdale, Understanding Domestic Homicide (Boston: Northeastern University, 1997); Meda Chesney-Lind, “The Forgotten Offender: Women in Prison: From Partial Justice to Vengeful Equity,” Corrections Today (1998): 66–73. See also Nina Siegal, “Stopping Abuse in Prison,” Progressive 63 (2002): 31–33. 22. Amnesty International, Not Part of My Sentence: Violations of Human Rights of Women in Custody, 1999; and Amnesty International, “Sexual Abuse of Women in U.S. State Prisons: A National Pattern of Misconduct and Impunity,” Human Rights News, December 7, 1996, available at http://hrw.org/press/1996/12/usprisons.htm. 23. See Maher, Sexed Work. 24. See Mauer and Huling, Young Black Americans; and Mauer et al., Gender and Justice. Drugs seem to play a larger role in the incarceration of women than of men, particularly for black and Latina women. Kristen Flurkey, “Abused Behind Bars: U.S. Women Inmates Suffer Human Rights Violation,” Peace & Freedom (1999): 12–14, reports that in a California study, over a third (35.9 percent) of women serving time for drug offenses do so for drug “possession.” In addition, Barbara Owen and Barbara Bloom, Profiling the Needs of California’s Female Prisoners—A Needs Assessment (Washington, DC: National Institute of Corrections, 1995) reported that in New York, 61 percent of women in state prisons in 1996 were convicted of a drug crime, one-fifth (444 women) having been convicted for possession of an illegal substance. In California, a 1993 study of women prisoners found the most common crime (16 percent) for which women had been convicted was possession of illegal drugs. On the other hand, Marc Mauer (in a personal communication with the author, 2003) maintains that about one-third of drug cases are “possession with intent to distribute” and that of the remainder, many have been plea-bargained down from an original trafficking charge. Even to the extent this is the case, it is unlikely that a prosecutor would agree to a plea bargain for a woman who was a serious trafficker. 25. Although 840,000 federal and state prisoners needed drug treatment in 1996, fewer than 150,000 received it. Joseph Califano, Behind Bars: Substance Abuse and America’s Prison Population (New York: Center on Addiction and Substance Abuse, Columbia University, 1998). See also Barbara Owen, In the Mix: Struggle and Survival in a Women’s Prison (Albany: State University of New York Press, 1998). 26. C. Peter Rydell and Susan Everingham, Controlling Cocaine: Supply Versus Demand Programs, MR-331-ONDCP/A/DPR (Santa Monica, CA: RAND, 1994), available at http://www.rand.org/publications/MR/MR331/. 27. Only 17 percent of men and women exoffenders in Maryland had gotten vocational/education programs while in prison, 50 percent had work assignments like sanitation and food service, one-third were idle, and only 3 percent had some form of reentry programs to prepare them to return to their communities. Nancy La Vigne et al., A Portrait of Prisoner Reentry in Maryland (Washington, DC: The Urban Institute, 2003), available at http://www.urban.org/url.cfm?ID=410655.

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28. Ruben Rosario, “Corrections: Budget Cuts Hit Women’s Programs,” Pioneer Press February 25, 2003. 29. Christopher Mumola, Incarcerated Parents and Their Children (Washington, DC: U.S. Department of Justice, 2000). 30. Correctional Association of New York, Women in Prison Project, The Effects of Imprisonment of Families: Fact Sheet, March 2002, available at http://www.correctionalassociation.org/images/Children-of-Incarcerated-Parents.pdf. 31. See Mumola, Incarcerated Parents. 32. Beth Richie, “Challenges Incarcerated Women Face as They Return to Their Communities: Findings from Life History Interviews,” Crime & Delinquency 47, no. 3 (2001): 368–89. 33. Donald Braman, “Families of Prisoners,” in Invisible Punishment: The Collateral Consequences of Mass Imprisonment, ed. Marc Mauer and Meda Chesney-Lind, 117–35 (New York: New Press, 2002); and Edwin C. Hostetter and Dorothea T. Jinnah, “Research Summary: Families of Adult Prisoners,” Family and Corrections Network’s Reading Room (2003), available at http://www.fcnetwork.org/reading/ researc.html. For a description and analysis of the importance in poor black communities of black men see Carol Stack, All Our Kin: Strategies for Survival in a Black Community (New York: Harper Row, 1974). 34 Eric Schlosser, “The Prison-Industrial Complex,” Atlantic Monthly (December 1998): 51–77. 35. Donald Braman, Research in Brief: Workshop on Families and Incarceration (Chicago: Annie E. Casey Foundation and Joint Center for Poverty Research, 2003). 36. Elizabeth Higginbotham and Lynn Weber Cannon, Rethinking Mobility: Towards a Race and Gender Inclusive Theory (Memphis: Center for Research on Women, University of Memphis, 1998). See also Todd Clear, “Backfire: When Incarceration Increases Crime,” Journal of Oklahoma Criminal Justice Research Consortium 3 (1996): 7–18. 37. Donziger, The Real War on Crime; Mona Danner, “Three Strikes and It’s Women Who Are Out: The Hidden Consequences for Women of Criminal Justice Policy Reforms,” in Miller, ed., Crime Control and Women, 1–14; New York State of Mind?: Higher Education versus Prison Funding in the Empire State, 1988–1998 (San Francisco: Center on Juvenile and Criminal Justice, 1998), available at http:// www.cjcj.org/pubs/ny/nysom.html; Laura Fishman, Women at the Wall: A Study of Prisoners’ Wives Doing Time on the Outside (Albany: State University of New York Press, 1990); Lori Girschick, Wives of Prisoners Speak Out (Westport, CT: Praeger, 1996). 38. Keven Helliker, “Guilt by Marriage: Many Convicts’ Wives Can’t Get Work, Housing or Insurance,” Wall Street Journal, 1983, p. 14. 39. Danner, “Three Strikes,” 1–14. 40. See Higginbotham and Cannon, “Rethinking Mobility”; Sokoloff, Between Money and Love: The Dialectics of Women’s Home and Market Work (New York: Praeger, 1980); and Sokoloff, Black Women and White Women in the Professions: Occupational Segregation by Race and Gender (New York: Routledge, 1992). 41. Elizabeth Higginbotham, “Employment for Professional Black Women in the Twentieth Century,” in Ingredients for Women’s Employment Policy, ed. Christine Bose and Glenna Spitze, 73–92 (Albany: State University of New York Press, 1987). 42. Daniel Altman, “308,000 Jobs Lost in February, the Most Since Post–9/11 Period,” New York Times, March 8, 2003. According to Altman, since November 2002,

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46.

47.

48. 49.

50. 51. 52. 53. 54.

55.

56. 57.

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140,000 manufacturing jobs vanished, but in February 2003 alone, 204,000 jobs were lost in the service sector. See Higginbotham, “Employment for Professional Black Women.” See Mumola, Incarcerated Parents. Creasie Finney-Hairston, “Prisoners and Families: Parenting Issues During Incarceration,” paper presented for the National Policy Conference, From Prison to Home: The Effect of Incarceration and Reentry on Children, Families, and Communities, U.S. Department of Health and Human Services (January 30–31, 2002). Sometimes, women are relieved when men who are in prison are not at home to harass, threaten, or hurt them. Likewise, many men do not have good economic prospects and don’t contribute to the support of their family as they should. There are struggles going on in many states right now over the rights of enfranchisement for prisoners, people on probation and parole, and exoffenders. For a review of this literature, see Marc Mauer’s work at The Sentencing Project, available at http://www.sentencingproject.org. For a summary of studies demonstrating the high rates of incarceration of young African American men, see Donziger, The Real War on Crime, 104–6. Peter Wagner, The Prison Index: Taking the Pulse of the Crime Control Industry (Springfield, MA: Prison Policy Initiative and Western Prison Project, 2003). For discussion of New York data, see Sokoloff, “Violent Female Offenders.” Chicago data are lower, yet similarly concentrated (see “Number of Prisoners Released by Illinois More than Doubles,” Ascribe Newswire, April 17, 2003). “Ex-Cons Say They Want to Vote” Fox News, October 1, 2002, available at http://www.foxnews.com/story/0,2933,64490,00.html. See La Vigne et al., A Portrait of Prisoner. Evelyn Nieves, “Drug Ruling Worries Some in Public Housing,” New York Times, March 28, 2002. They are Connecticut, Michigan, New Hampshire, New York, Ohio, Oklahoma, Oregon, Vermont, and Washington, DC. Nationally, 48 percent of the women affected are African American or Latina, but this varies significantly by state. In five states, more than half of the women affected were African American: Alabama (61 percent), Delaware (65 percent), Illinois (Cook County; 86 percent), Mississippi (54 percent), and Virginia (63 percent). See Patricia Allard, Life Sentences: Denying Welfare Benefits to Women Convicted of Drug Offenses (Washington, DC: The Sentencing Project, 2002), available at http:// www.sentencingproject.org/pdfs/9088.pdf; and Crack Cocaine Sentencing Policy: Unjustified and Unreasonable (Washington, DC: The Sentencing Project, 2000), available at http://www.sentencingproject.org/brief/pub1003.htm. A 2001 study of more than three thousand men and women released from prisons in Maryland, Minnesota, and Ohio showed that prison education program graduates earned higher wages and committed fewer new offenses three years after release. See Stephen Steurer et al., The Three State Recidivism Study (Correctional Education Association of the U.S. Department of Education, 2001). Available at http:// www.dpscs.state.md.us/publicinfo/publications/pdfs/three-state-recidivism-studysummary.pdf. Michelle Fine et al., “Changing Minds: Going to College at a Maximum Security Prison,” Women, Girls & Criminal Justice 4, no. 2: 17, 18, 25–31. Katherine Luke, “Mitigating the Ill Effects of Maternal Incarceration on Women in Prison and Their Children,” Child Welfare 6, no. 81 (2002): 929–48.

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58. Lori Reid, “Occupational Segregation, Human Capital, and Motherhood: Black Women’s Higher Exit Rates from Full-Time Employment,” Gender & Society 16 (5): 728–47. 59. Robert Hampton et al., “Violence in Communities of Color,” in Family Violence and Men of Color: Healing the Wounded Male Spirit, ed. Ricardo Carillo and Jerry Tello (New York: Springer Verlag, 1998); and Callie Rennison and Michael Planty, “Non Lethal Intimate Partner Violence: Examining Race, Gender and Income Patterns,” Violence and Victims 18, no. 4 (2003). 60. Hampton et al., “Violence in Communities of Color,” 1–30; Carolynn West, “The ‘Political Gag Order’ Has Been Lifted: Violence in Ethnically Diverse Families,” in Domestic Violence: At the Intersections of Race, Class, and Gender in the United States, ed. Sokoloff (New York: Rutgers University, 2005); and Sokoloff and Ida Dupont, “Domestic Violence: Examining the Intersection of Race, Class, and Gender,” in Sokoloff, ed., Domestic Violence. 61. Richie, “Challenges Incarcerated Women Face,” or Compelled to Crime, 38, 381–82. 62. Fox Butterfield, “Freed from Prison, But Still Paying a Penalty,” New York Times December 29, 2002. 63. The U.S. Department of Justice (1992) jail study found that 44 percent of women and 34.5 percent of men reported a close family member had served time in jail or prison. Almost 75 percent of women in California prisons had family members who had been arrested, and 63 percent reported that a close relative had been incarcerated (U.S. Department of Justice, 1992). Barbara Bloom et al., Women in California Prisons: Hidden Victims of the War on Drugs (San Francisco: Center on Juvenile and Criminal Justice, 1994). 64. Denise Johnston, “Effects of Parental Incarceration,” in Children of Incarcerated Parents, ed. K. Gabel and D. Johnston, 59–88 (New York: Lexington, 1995). 65. David Rusk, Baltimore Unbound: Creating a Greater Baltimore Region for the 21st Century: A Strategy Report (Baltimore: Johns Hopkins University, 1995).

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TOWARD A BLACK FEMINIST LIBERATION AGENDA: RACE, GENDER, AND VIOLENCE Kristen Clarke

There are a series of social, cultural, and political institutions that reproduce, support, or perpetuate dangerous stereotypes about black women. Many of these stereotypes and labels are informed by both historical and contemporary understandings of black women. Indeed, the persistent myth of the black woman as masculine, fiercely independent, hostile, aggressive, and domineering1 works to frustrate the use of legal strategies generally available for black women who come into contact with the criminal justice system. It also works to strip them of their womanhood, which is a central aspect of their identity. In addition, this stereotyping of black women works to further subordinate and marginalize them, thus forcing them to contend with the challenges brought by the intersection of their race, gender, and violence in social and political life. Indeed, the current expansion of the prison–industrial complex and the growing incarceration rates among women of color call for the development of a black feminist liberation agenda that transforms the social and political identities of black women while offering new strategies to slow escalating incarceration rates among black mothers. EXPANSION OF THE PRISON–INDUSTRIAL COMPLEX: THE PLACE OF BLACK WOMEN Over the last few years, there has been an increased emphasis on the expansion of the prison–industrial complex. In many states, prison construction outpaces the development of new public schools, parks, and community centers. Increasing percentages of state budgets are committed to the development of prisons, jails, and detention centers, and police departments have watched their annual budget allocations grow. The current boom in the prison industry coincides with the largest

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incarceration rate that this country has ever witnessed. With the current prison population standing at more than 2 million, the United States now has one of the largest incarcerated populations of any country. In fact, the United States houses over a quarter of the world’s prison population despite having less than 5 percent of the world’s overall population. The current expansion of the prison–industrial complex brings with it a series of troubling consequences, particularly for women of color. The current number of women in prisons and jails throughout the United States is increasing at a faster rate than that of men.2 Seventy-five percent of women in prison are mothers. Two-thirds of these women have children under the age of eighteen years. Seventy-eight percent of women in prison report that they have been physically or sexually abused. Finally, black women are incarcerated at a rate eight times that of women generally.3 Vigorous enforcement of drug laws and the incarceration of persons in possession of small quantities of drugs provide some explanation for the current crisis, but increased racism and sexism among law enforcement agencies and officials provides a fuller explanation for rising incarceration rates among women of color. These alarming rates call for a new understanding of the social construction of black women within the criminal context. They also call for an exploration of issues surrounding the intersection of race, gender, and violence4 and an examination of the effect that incarceration has on the black family unit. Black women have become new targets in our incarceration-obsessed world. Increasingly, black women are the victims of racial profiling by police officers, store managers, and airline security. Black women are viewed as providing shields for black men, who are presumed to be already engaged in some form of criminal activity. When black women come in contact with the criminal justice system, they are often denied the benefit of defense strategies that are readily employed by their white counterparts. One such strategy, the battered women’s defense, helps illustrate this dual crisis of racism and sexism in the justice system. The battered woman’s defense (originally referred to as the battered women’s syndrome) is a legal strategy generally invoked when an individual, usually a woman, is continuously subjected to a pattern of domestic violence and forced to submit to the dictates of an abusive partner. The concept of battered women was first introduced by Lenore Walker, a forensic psychologist, who observed that women in these situations suffer from “learned helplessness,” whereby the psychological stresses of living in a constant state of fear “inhibits [a woman’s] ability to perceive the possibility of escape.” According to research, battered women become submissive, compliant, passive, and meek. All their energies are “focused on avoiding the next attack, and when that has failed, living through it.” Many critics have challenged Walker’s conception of battered women as essentially stigmatizing them as “sick” or “mentally ill.” To better reflect concerns about background gender inequality, the battered women’s defense has undergone some theoretical transformation over the decades, expanding to include more feminist understandings of abusive relationships. The domestic violence that results in abusive contexts can manifest in the form of physical, emotional, sexual, or economic abuse and is largely aimed at controlling or dominating the other partner. In general, women in these situations find that the

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abuse and violence escalate over a period of time. A single abusive event such as a slap, unwanted sex, or vicious taunting steadily degenerates into a systematic and pervasive cycle of abuse. Experts who have studied and monitored women in these situations note that there is a tremendous feeling of entrapment, a learned helplessness, among women in these situations. Women rarely feel that they are able to turn away from an abusive partner and start their lives over. In addition to some of these emotional responses of entrapment, there are more objective, gender-based reasons that provide an explanation for the sense of entrapment that battered women feel. Indeed, the greatest contribution that feminists have lent to the construction of the battered women’s defense is an alternative rationale as to why women tend to feel trapped in abusive situations. A feminist understanding of the battered woman recognizes that women tend to respond to abuse “with help-seeking methods that are largely unmet and that women increase their help-seeking as the danger to themselves and their children increases.”5 A black feminist liberation ideology can be applied to these situations to help unpack the influence of coercive state power, inaccessible social service delivery, and racism on the experiences of black women in abusive situations. Given pervasive gender inequality, women are less likely to find jobs that pay salaries commensurate with those obtainable by their male counterparts. Women are more likely to experience gender-based discrimination in the workplace that affects the prospects of promotions, benefit packages, and wage increases. Black women, who contend with the challenges associated with both race and gender, have an even more difficult time in the workplace. Black women are among the lowest wage earners and are the primary group likely to experience some form of dual gender- and race-based discrimination during their working lives. In addition, black women are unemployed at rates much higher than their white counterparts.6 As a result, black women are more likely to be in positions in which there is reliance or dependence on the joint income provided by their spouse. Thus, the economics of family maintenance indicates that black working-class women tend to be more reliant on the supplemental income of their spouses to help provide basic life necessities for them and their children. In addition to general workplace inequality, divorce laws in many states are constructed in ways that might affect a woman’s decision to walk away from an abusive male. Women who are more reluctant to divorce a spouse in the hopes of repairing the relationship are unlikely to receive child support or alimony during periods of separation. In some states, women’s organizations are petitioning their state legislatures for laws that would mandate prosecution for domestic violence. It is believed that if the abusers are in jail, women would have a safer and more meaningful opportunity to consider joining a shelter that could provide the necessary therapy and economic independence. State coercive power also affects black women’s decisions about the level of interaction that they seek to have with the criminal justice system. The tremendous levels of distrust and fear that exist in black communities as a result of escalating police brutality and misconduct discourage many black women from seeking refuge with local police departments. Where women feel that their claims are unlikely to be followed

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through on and investigated, or where there is a sense that immediate intervention is unlikely, they are less likely to run to police officers for help. The full range of this background inequality is worth considering in deconstructing the choices that women make in battering situations. Social and political forces, predominant stereotypes and myths, and the lurking threat of coercive state power are all factors that influence and shape the decisions of women in abusive situations. Certainly, the battered women’s defense has been met with a fair share of criticism from policymakers, politicians, feminists, and activists. Some find that the defense pathologizes women by suggesting that they lack the reason and free will to walk away from abusive and negative situations. Others feel that the defense is disempowering in that it discourages women from leaving abusive partners when they are aware of the safety valve within the law. Finally, some hold that the defense stigmatizes women as vulnerable children in need of special protection under the law. Despite these varied criticisms, the situation of battered women is deemed one of the nation’s most studied and critical public health problems. The battered women’s defense is raised frequently in trials involving a battered spouse and is often used as evidence to explain the actions of the battered individual. The defense can be offered during a trial for women who were trapped in abusive situations and are seeking to provide evidence of a mitigating factor that will encourage the judge or jury to be lenient. In some instances, women who have killed a spouse or partner are acquitted on expert testimony and evidence about the effects that the battering has had on the women. For a number of reasons, black women have been far less successful than white women in raising the battered women’s defense during trial. I argue that the social construction and media depictions of black women as independent, domineering, aggressive, and hostile individuals helps explain, in part, why some judges and juries are far less likely to apply the defense in examining these women’s experiences with violent men. In addition, racism works to create inequity in the way in which strategies such as the battered women’s defense are applied. Because white women historically enjoy a reputation of innocence, honor, and virtue,7 they are deemed more worthy of greater protection and immunity as compared with other racial minorities. KEMBA SMITH AND THE BATTERED WOMEN’S DEFENSE The story of Kemba Smith, a twenty-six-year-old black woman currently incarcerated at a medium-security prison, is a case worth serious examination in this context. Kemba grew up in a middle-class family in a small suburban town and attended Hampton University, a historically black college located in Virginia. During her first year at Hampton, Kemba began dating a young man, Peter Michael Hall. Hall was about eight years her senior and the ringleader of a massive drug-trafficking scheme operating throughout the northeastern part of the United States. During their relationship, Peter kept his drug activity somewhat separate from his relationship. Thus, Kemba never physically handled or sold drugs during the course of her relationship with him. Given the extent of illegal activity that Peter was involved with, one would think that Kemba would have chosen to turn her back on the situation and walk away.

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Kemba was contacted by FBI agents after Peter was placed on their Most Wanted list, but for a number of reasons, Kemba initially chose to not cooperate with officials. Unfortunately for her, at this time, black women don’t enjoy second chances. When black women acquiesce in black men’s illicit activity, they are stigmatized and branded the same as the men. There is rarely an opportunity to look into the circumstances surrounding black women’s situations to unravel the layers of complexity that define those situations. Careful analysis of Kemba’s story reveals that she suffered a pattern of violent abuse at the hands of her boyfriend, which greatly influenced Kemba’s initial decision to not cooperate with the FBI. She was often beaten badly by Peter. She was forced to seek emergency room medical treatment on one occasion for her injuries, and she experienced a miscarriage after another particularly violent incident. Kemba witnessed Peter murder his best friend when he believed that the friend had become a police informant, and Peter also made a threat against Kemba’s father, whom he believed might be cooperating with federal law enforcement. Kemba dropped out of school on Peter’s urging and was forced to travel with him around the country as he attempted to evade police authorities. Before he could be brought to trial and before Kemba had an opportunity to inform authorities of his whereabouts, Peter was murdered by an unknown assailant at a hotel room in Texas. During trial, Kemba was held accountable for the entire 225 kilograms of crack cocaine that was trafficked under Peter Michael Hall’s leadership. Under the stiff penalties of the federal sentencing guidelines, Kemba received a sentence of twentyfour years in prison with no possibility of parole. Under the guidelines, a judge is forbidden to consider any other facts in a case, as punishment is based solely on the amount of drugs involved in the offense. Thus, the particularities of Kemba’s case were not a factor in the judge’s decision-making. The violent beatings that Kemba suffered, the systematic abuse, and her miscarriage were not issues that could be weighed in determining the extent of Kemba’s guilt. Despite the inflexibility of the sentencing scheme established by the guidelines, it is black women who have suffered the greatest under these laws. For whatever reason, white women who are brought in under similar circumstances rarely make it that far along in the system. Prosecutors can exercise their discretion not to take action in their case, and white women found in actual possession are more likely to receive the benefit of treatment centers and rehabilitation programs than are minorities. Black women are more often stigmatized as being guilty and as being criminals worthy of the greatest criminal sanction and punishment that the criminal system has to offer. In many ways, Kemba’s case merely exemplifies the reassignment of guilt and punishment. When black men become inaccessible or less reachable, black women serve as a proxy on which the system can carry out its harsh enforcement policy. Black women are viewed as unworthy of exemption or defense, as it is assumed that they always have the means to turn away. Although this social construction of black women assumes a false and overstated sense of independence, it does help explain why they rarely enjoy the opportunity to exercise legal defenses and strategies form which their white peers benefit.

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TOWARD A BLACK FEMINIST LIBERATION UNDERSTANDING OF BATTERED WOMEN As Joy James notes, black feminist liberation ideology should be constructed in a way that challenges state power by addressing class exploitation, racism, and sexual violence. Indeed, the sexual stereotyping of black women as domineering, aggressive, hostile individualists is an image reinforced through social structures and reproduced by institutions such as the media. Deconstructing the mythology surrounding the hostile black woman is a necessary first step in creating an environment in which the particular needs of abused black women can be addressed. Indeed, black women have been denied the privileges of femininity and protection from physical and discursive violence that is generally granted to white women.8 Breaking down these stereotypes calls for a delicate balancing of a woman’s need to be protected from violence and misogyny with a desire to eradicate patriarchy and paternalism. Historically, the notion of the empowered black woman has been regarded as part of an emasculating black matriarchy in which women seek complete and absolute independence from men.9 This antiquated notion of black feminist theory has worked to create tension and conflict between the sexes, but the typecasting of black women also has had tremendous consequences for those women who come into contact with the criminal justice system. This typecasting makes it more difficult for judges and juries to sympathize with black women who are trapped in abusive relationships, and it also creates obstacles that prevent judges and juries from understanding why some black women fail to seek intervention or outside help. Given increased tensions between the black community and police officers, there is a general reluctance in minority communities to report crime incidents to the police or to work in cooperation with the police to investigate these incidents. This reluctance, distrust, and fear have tremendous influence on black women’s decisions to report abusive spouses or partners to the police. In the case of Kemba Smith, the decision to postpone cooperation with FBI officials worked to her detriment, as officials read this choice as an indication of complicity or participation in the illegal activity of her partner. In addition, race, gender, and class also converge to create a unique set of circumstances experienced largely by black women. When domestic violence erupts in urban communities, the stresses of poverty and unemployment create a situation in which the woman is more likely to feel trapped in the home. Given the recent cuts in social spending, decreases in social service delivery, increasing unemployment among the urban poor, and reform of welfare policy, black women are more likely to feel trapped and unable to turn to peers or family members for refuge or support. Although many of these concerns are shared equally by poor white women, these issues become compounded when race is factored into the equation. REDEFINING BLACK WOMANHOOD Two-thirds of mothers in prison today have children who are under the age of eighteen years. Many women of color who come into contact with the criminal justice system leave behind children who are generally institutionalized, placed in the foster

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care systems, or taken in by relatives. Because women tend to be children’s primary caregivers, there is rarely complete assurance that children will receive proper care and guidance once separated from their mother. Because most single-parent families are headed by women, the absence of the mother carries with it tremendous social stigma for the child. For black women, parental status is rarely a characteristic given any kind of assessment or consideration in determining whether incarceration is the best option in a given situation. Black mothers are rarely given access to alternative incarceration programs that help sustain relationships between mothers and their children. For black mothers in prison, such as Kemba Smith, parental status is a personal characteristic that is seldom dignified or granted substantial consideration in the criminal justice system. The fact that Kemba Smith was a new first-time mother was not a factor taken into consideration when she was sentenced to a penalty of twenty-five years in prison for her relationship with Peter Michael Hall. The lack of consideration for a black woman’s parental status compounds the current stereotyping that black women experience in the criminal justice system, thus stripping them of their womanhood—a central aspect of their identity. A range of historical and contemporary factors contribute to the current devaluation of black womanhood. The legacy of enslaved Africans, in part, informs current conceptions of black womanhood. Thus, any liberation agenda aimed at deconstructing the dual influence of gender and race on contemporary understandings of black women’s experiences must be based, in part, on the conditions that black women endured during slavery. Indeed, analysis of the female slave’s experiences provides two possible theories for the current application of drug laws that disproportionately work to strip black mothers from their children. First of all, female slaves were largely classified as “breeders” as opposed to “mothers”;10 their children could be sold away from them at the will of their white male owners. One way of interpreting state coercion or force as a means of stripping apart the black family unit is by tracing the historical legacy of “breeding” that has persisted since the slave period. Historically, black women were expected to give up their children where the law dictated that they do so. Numerous laws were established in this system that stripped female slaves of their parental rights, as both mother and child were deemed property of their owners. Today, the parental rights of black women, such as Kemba Smith, are of little consequence when they come into conflict with the criminal justice system. Indeed, we are continuing to overcome the legacy of “breeding,” as black women’s parental rights have yet to be accorded full dignity. Given the inequities in the system, particularly racial sentencing disparities, black mothers bear a heavier burden as compared with white mothers. Second, many of the persisting stereotypes of black women are based on notions of the female slave as resistant, unruly, and disruptive. Today, many black women continue to be similarly stereotyped as aggressive and defiant. Like black men, black women are also deemed to have a greater propensity for crime on the basis of their racial status. Although the majority of studies and analyses of racism in the criminal justice system have focused on the stereotyping of black men, black women experience comparable levels of abuse and mistreatment in the criminal justice system. The typecasting of black women is compounded by some of the gender stereotypes that

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have carried over since the slave era. Thus, a liberation agenda must also support strategies aimed at breaking down these stigmatizing stereotypes while simultaneously redefining black womanhood. Indeed, “collective actions, . . . must be directed at changing the social conditions that both allow the dominant group to control the manufacture and dissemination of ideological constructions and lend strength and credibility to stereotypes.”11 This new conception of black womanhood can help judges, juries, the media, and political institutions better understand, sympathize with, and interpret the experiences of black women. This new conception can also help generate greater sympathy for the plight of black battered women and restore the dignity and humanity of black women while providing a new focus on the importance of maintaining the black family unit. CONCLUSION As the prison population continues to expand, there is growing need to focus on the effect that incarceration has on women of color, and on black women in particular. Indeed, incarceration has a tremendous effect on the stability of the black family unit that works to further dehumanize and demoralize black women. Kemba Smith’s case provides an illustration of the current disregard for the black family unit and of the disparate treatment of black and white women who come into contact with the criminal justice system. The current social and political construction of black women’s identities are shaped in large part by persisting stereotypes that label women as aggressive, violent, and domineering individuals. It is also influenced by a historical legacy of black women as “breeders” that affects our ideas of black motherhood and parental rights. For black feminists and others concerned with the development of a liberation ideology, a political praxis must be developed that accounts for intersections that exist across lines of race, gender, and violence. This political praxis must also incorporate advocacy models and litigation strategies that can be used on behalf of the growing numbers of black women who come into contact with the criminal justice system. NOTES 1. May King, “The Politics of Sexual Stereotypes.” Black Scholar 12, no. 4 (1973): 12–23; Sharon Angella Allard, “Rethinking Battered Woman Syndrome: A Black Feminist Perspective,” UCLA Women’s Law Journal 191, no. 1 (1991): 191–207. 2. U.S. Department of Justice Office of Justice Programs, Bureau of Justice Statistics Bulletin, August 1998. 3. Ibid. 4. Kimberle’ Crenshaw, Neil Gotanda, Gary Peller, and Kendall Thomas, “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color,” in Critical Race Theory: The Key Writings That Formed the Movement (New York: New Press, 1995). 5. Allard, “Rethinking Battered Woman Syndrome.” 6. Claudette E. Bennett, The Black Population in the United States: March 1994 and 1993, U.S. Bureau of Census, Current Population Reports (Washington, DC: GPO, 1995).

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7. Maxine Atkinson and Jacqueline Boles, “The Shaky Pedestal: Southern Ladies Yesterday and Today,” Southern Studies 34, no. 4 (1985): 398–406. 8. Farrah Griffin, 9. Michelle Wallace, Black Macho and the Myth of the Superwoman (London: Verso, 1978). 10. Angela Davis, Women, Race and Class, 7 (Vintage Press, 1981). 11. Leith Mullings, “Images, Ideology and Women of Color,” in On Our Own Terms: Race, Class and Gender in the Lives of African American Women (New York: Routledge, 1997), 125.

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THE FEMALE BOGEYMAN: POLITICAL IMPLICATIONS OF CRIMINALIZING BLACK WOMEN Julia S. Jordan-Zacherys

Pregnant, substance-abusing women came into the public spotlight in the late 1980s via extensive media attention and a number of prominent court cases: Brenda Vaughn in Washington, DC; Sandra Inzar in North Carolina; Britta Smith in Virginia; Melissa Morabito in New York; Jennifer Johnson in Florida; Kimberly Ann Hardy in Michigan; and Ferguson et al.—a group of eleven women in South Carolina.1 These cases represent just a few of the women who have been prosecuted for or charged with crimes such as attack with a deadly weapon (crack cocaine) with intent to kill a fetus, endangering the welfare of an unborn child, and felony child neglect after a child tested positive for cocaine exposure at birth. South Carolina is the leader in prosecuting pregnant substance-abusing women, with a total of eightyseven cases between 1989 and 1992. In that same period, Florida prosecuted thirtyfour women. A substantial number were black. Hegemonic cultural ideology has given us a socially sanctioned image of motherhood. A good mother is self-sacrificing and protective of her fetus and, later, her child. Women, such as some named above, who are perceived as failing to follow this role model are portrayed as deviant. Drug-abusing pregnant or parenting mothers are particularly prone to being categorized as deviants, depending on their drug of choice, which tends to be influenced by race and socioeconomic factors. Sociologist Drew Humphries highlights how race influenced the perception of crack-abusing pregnant or parenting mothers when such women were frequently examined in the mainstream media.2 According to Humphries, the way media outlets depicted drug use by pregnant women made it clear who these individuals were: Poor, black women were overwhelmingly used in the storytelling. Such depictions contributed to these women being constructed as the antithesis of model mothers, and their criminalization was thereby validated.

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Much has been written about drug-abusing, poor, African American women. The research is heavily concentrated in legal theory and criminal justice studies. Researchers such as Paula Johnson and Dorothy Roberts have superbly analyzed the constitutional implications of the criminal prosecution of drug-addicted mothers. They have pushed many not only to engage in a feminist critique of criminalization policies but also to center the analysis on issues of race and class. Roberts and Johnson show that the iconography of black womanhood, as expressed via images of the welfare queen, Jezebel, and the matriarch, play a role in the social construction of substance-abusing black pregnant or parenting women. They show how such images influence judicial decision making primarily as it relates to issues of personal autonomy.3 Roberts, in her analysis of reproductive politics, focuses on the government’s control of black women and details the various myths of black womanhood. She contends that the government’s control of black women’s reproductive choices is intricately linked to a history of racism, which has worked to construct the black woman as Other and therefore not worthy of the same types of reproductive rights afforded to white women.4 Political scientist and criminologist Diana Gordon, in The Return of the Dangerous Classes, argues that crime policy is actually designed to maintain dominance and cultural hegemony over those categorized as the “dangerous” classes.5 Gordon argues that drug prohibition in the United States cannot be solely understood as a response to the social and medical harms resulting from drug use and sales. In fact, she argues that the response to drug-related harms is a response to a “shadow agenda.” This agenda is not a conspiracy but, Gordon posits, is the result of America’s social, political, and economic structures. These structures, over time, resulted in rising levels of poverty, homelessness, education failure, family instability, racial polarization, political alienation, and higher rates of drug abuse. When policymakers fail to recognize the role of these factors in promoting drug abuse, when they instead view addiction as the root of social problems, they often construct policies that are prone to fail because they are designed to control the dangerous classes: racial and ethnic minority groups and youth. Such policies are really efforts to protect and advance powerful interests that maintain the racial status quo. The crack mother appeared on the public and policy radar screen in the 1980s. This symbol is complex, rich, and, in Gordon’s language, dangerous. The condensing of this social issue into a symbol not only tells us what drug is being targeted— crack cocaine—but also sends a message about the individual, indicating that the addicted mother is cracked, or broken. Interestingly, this stereotype emerged in the public view at about the same time as the image of the welfare queen. Both are shorthand for a cheater, a manipulator, a person who feels no qualms about receiving public assistance but, indeed, feels entitled to such assistance. It was often suggested that crack-addicted women used their public aid to purchase drugs while their children remained hungry. The crack mother, birthed out of previous images of black womanhood, is portrayed as an individual lacking morals and suffering from uncontrollable sexuality. It appears that this woman is constructed as a criminal because her sexuality has been associated with her fertility, similar to the matriarch and the welfare queen. This association between sexuality and fertility is often problematic for

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those in power because of the economic implications of the procreation decisions of black women. Media images portrayed the crack mother as the breeder of children left to the care of generous members of society, as abusers of the generosity of more upstanding individuals—law-abiding citizens who worked and paid taxes, and mothers who avoided drugs to protect their children. Such images have consistently been used to justify state monitoring of black women and the black community. The crack mother image allowed those in power to recast all black female criminals, further aligning such women with the demonized black male criminal.6 This masculinization process justifies the incarceration of these women for extensive periods of time, an excessive amount of state monitoring—including police monitoring and disparate treatment in terms of drug charges and sentencing, and the severing of ties between black women and their children. Heightened police surveillance of black women has resulted in them constituting “a higher percentage of the incarcerated female population than black males do of the incarcerated male population.”7 Black women now represent the nation’s fastestgrowing prison population. From 1986 to 1991, the number of black female drug offenders in state prison rose by 828 percent, Hispanic women by 328 percent, and white non-Hispanic women by 241 percent.8 Few theoretical or research efforts, however, have been specifically directed toward a systematic analysis of the black female, the criminal justice system, and the political ramifications of crime policy on the black community as a whole. Research in this area, which is heavily concentrated in the disciplines of sociology and criminology, tends to focus on black men; research on female crime tends to concentrate on white women. When analysis does concentrate on black female criminality, it is located somewhere in between. Criminal law scholar Michael Tonry’s study on the effect of the war on drugs is one such example of the omission of women in the analysis of the effect of crime policy on black women. He writes: Racial disproportions are about as bad in women’s prisons as in men’s. Like men, about half of female prisoners are black. However, women make up only 6 to 7 percent of the total number of prisoners. Because one of my central arguments is that by removing so many young black men from their families and communities, crime control policies are undermining efforts to ameliorate the conditions of life of the black urban underclass, the focus on black men is necessary. The story of black women as offenders and as prisoners is important, but it is a different story.9

To address this omission, I explore the effect of race, class, and gender on the formation of crime policies and the influence of such policies on black females and the black community. By focusing on marginalized black women, this chapter begins to tell the different and important story of black women, criminality, and the justice system. Sociologist Christine Rasche reports that women in general tend to be excluded from research on crime policy for three reasons: 1) they tend to constitute a small percentage of prisoners; 2) they and correctional authorities are more likely to oppose research on female offenders; and 3) women, as a topic of interest for inquiry, are often viewed as insignificant.10 Although various barriers confound research in this

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area, it is an issue that merits investigation. An examination of criminalization’s effect on the black community can be profoundly altered by the prism of gender: The criminalization of black women affects their communities by forcing them to restructure in terms of family organization, politics, and economics. Crime policies concern the distribution of societal resources—political, economic, and social. Policies designed to address the intersection of fetal rights and drug addition disproportionately punish black women because they address them based on a very negative view of black womanhood as opposed to treating them as persons affected by resource differentials among communities. Crime policy is but one of many policies that thwart the life choices of African American women, punishing them not only by removing them from society but also by increasing poverty and silencing or muting their political voices. In essence, crime policies determine the distribution of political, economic, and social resources and thus end up disenfranchising the black community. In the following analysis of the construction of what may be thought of as the black female bogeyman, the primary focus is on crack-using pregnant women and mothers. To this end, I analyze the claims made by policy elites regarding the socalled war on drugs and drug policy in general, including their ideological construction of the public issue of drug-related crimes and criminals. It should be noted that much of what was said regarding the war on drugs appeared on the surface to be gender neutral. The media-generated discovery of the crack baby and the crack mother, however, allowed for many of these claims and drug-related policies to be interpreted for the first time through a gender lens. I then survey the female prison population to document who is being criminalized so that I may then analyze the intersection of the war on drugs, fetal rights, and race. The primary purpose is to show the evolution of the idea of the so-called crack baby and how public discourse around this subject pushed gender-neutral public policy to take on a decidedly gender-biased character. The criminalization of black women and the effect of this trend on their community also mean that we must consider issues such as other-mothering (defined below) and the financial burden such criminalization places on those left on the other side of the prison bars. Ultimately, the life choices of black women and members of their communities are thwarted when black women are socially defined as society’s enemies. THE WAR ON DRUGS: A “WAR” AGAINST CRACK AND THE BLACK COMMUNITY In the 1980s and early 1990s, crime took center stage on the agendas of presidential candidates. Increasingly, politicians, the media, and the public concentrated on the marketing and abuse of crack cocaine. “Crack attracted the attention of politicians and the media,” according to sociologists Craig Reinarman and Harry G. Levine, “because of its downward mobility to and increased visibility in ghettos and barrios. The new users were a different social class, race and status.”11 Consequently, the war on drugs was defined as a war on crack houses in what were called ghetto and innercity neighborhoods. The criminalization of black women affects their communities by forcing terms of family organization, politics, and economics.

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The emergence of the crack baby, which focused largely on media accounts of the destruction these children would wreak on society, allowed the policy elite to resurrect old negative images of black women into the discourse on crime as well as to insert new negative images. Similar to the matriarch stereotype, in which the families of black female-headed households caused many ills in their communities,12 the crack mother was quickly equated with a negligent mother. This shift allowed those in power to argue that black women are incapable of caring for their children and therefore warrant state regulation. With the increased focus on crack cocaine, media accounts of crime and criminals took on a different tone and were increasingly—but at times implicitly—laced with racial stereotypes. Eventually, through stories of the crack baby, the gender characterizations of the criminals shifted, with black women figuring more prominently than ever. Although much of the rhetoric appeared to be gender neutral, I can show that, primarily via the use of crack baby images, the policy that resulted from this discussion was anything but. President Ronald Reagan’s 1982 declaration of a war on drugs ushered in the nation’s contemporary preoccupation with drugs, specifically with crack cocaine. In an attempt to gain support for his war, Reagan often claimed that drug abuse was growing because of, in his words, a “new privileged class” of “repeat offenders” and a criminal subculture spawned by expensive social programs founded on “utopian assumptions about man as primarily a creature of his material environment.”13 This was an extension of Reagan’s use of the welfare queen image to portray women receiving public assistance as greedy, lazy, and dishonest. It appears that repeat offenders were deemed privileged because they took advantage of the generosity of the citizens whose taxes pay for social programs, thereby allowing these offenders to avoid work, stay home, and abuse drugs that they purchased with their cash public assistance. Furthermore, Reagan suggested that society was too lenient on and compassionate toward criminals, which discouraged these criminals from taking individual responsibility for their actions. Based on this ideology, Reagan subscribed to a zero-tolerance policy that extended the reach of the drug war to current and potential narcotics users.14 This was a war designed to teach values by promoting a particular individual behavior to women depicted as lacking morality and unable to control their sexuality. In the late 1980s and early 1990s, President George H. W. Bush continued disseminating messages that linked drug use to poor communities of color, violence, and family instability. According to Bush, “[W]e ought to begin by passing the crime bill that nearly passed last year, which does two things: It gives urban areas of this country more police officers for the streets. I have been in areas that were dominated by drugs, weapons, and by murders” (emphasis added).15 For Bush, crack became an all-inclusive symbol of what was wrong with America, and specifically urban America. According to him and the authors of many published articles, crack was the most addictive drug in America. In many of his speeches, Bush stressed the destructive powers of crack on America’s children, living and unborn. In addition, he often made moral pleas to individuals to encourage them to join the war on drugs. “Week by week, day by day, millions of Americans in thousands of towns are standing up to make some courageous choice: drug-free neighborhoods, drug-free schools, and drug-free kids,” he said in 1990.16 Such was the rhetoric Bush commonly used to rally citizens to join the Just Say No to Drugs campaign. Bush made one such appeal

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during a speech he gave while standing in front of the White House, holding a vial of crack for all America to see. He explained that the vial had been purchased, in a deal engineered by the Secret Service, just across the street from the White House. The speech and its imagery—the White House, the crack vial—was symbolically rich. It represented a powerful fear, inflamed by the nation’s power elite, of crack and its users invading white (houses and) neighborhoods, preying on (white) children. Metaphorically, the black community was seen to be creeping dangerously into white (specifically upper-class) homes. This helps to explain the need for boundaries between white and black, ghetto and suburb (witness, for example, the rise of gated, mostly white suburban communities in these years). Prison bars were held up as the ultimate barrier to alleviate individuals’ fears (specifically those white individuals) that crack could very well invade their homes—their most precious possessions. Presidents Reagan and Bush framed the war on drugs as a war against crack. Further, they linked this war against crack to the ghettos, crime, violence, black users (as opposed to drug traffickers), and eventually black mothers. When Bush held up the crack vial, he created a particularly important image of crack (and blacks and deviancy and violence and all the negative symbolic associations that go along with crack and black) creeping into white America. In essence, constructing the war on drugs in this manner provided the policymaking elite with the mechanisms to maintain the boundaries between black and white Americans. President Bill Clinton’s approach to this drug war, particularly in the early years of his presidency, did little to challenge the discourse constructed by Reagan and Bush. For the most part, he focused on issues of fairness as they related to the vast disparity in sentencing those who used or sold crack versus powder cocaine. The sentencing ratio was one hundred to one: The law treated the possession of powder cocaine as a misdemeanor punishable by a maximum penalty of one year, but possession of crack cocaine (as little as five grams) would bring a mandatory sentence of five years. It should be noted that his stance on this matter shifted: Initially, in 1995, Clinton refused to sign the United States Sentencing Commission’s recommendations to change the disparity in the sentencing between crack and powder cocaine. During the debates on the Sentencing Commission’s recommendations, Clinton tended to place a heavy emphasis on the “culture of violence” spawned by crack. It appears that he believed that the sentencing disparity was warranted because “trafficking in crack, and the violence it fosters, has a devastating impact on communities across America, especially urban communities. Tough penalties for crack trafficking are required because of the effect on individuals and families, related gang activity, turf battles, and other violence.”17 In his attempt to reframe the discourse on the war on drugs, Clinton’s rhetoric changed in 1997, when he began to focus not on the “culture of violence,” but on “fairness.” In addition, he addressed more blatantly the issues of race and class and their relation to the drug policies, thereby challenging the perceived notion that African Americans are inherently violent. For example, in a conversation with Jann Wenner of the magazine Rolling Stone, Clinton stated: I tried to change the disparities, and the Republican Congress was willing to narrow, but not eliminate, them on the theory that people who use crack are more

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violent than people who use [powder] cocaine. Well, what they really meant was that people who use crack are more likely to be poor and, coincidentally, black or brown and, therefore, not have money. Whereas, people who use [powder] cocaine were more likely to be rich, pay for it, and therefore be peaceable.18

Clinton’s concerns over sentencing disparities were also addressed at the congressional level. Congressional hearings on the sentencing disparity between crack and powder cocaine capture much of the sentiment of legislators regarding the war on drugs. A snapshot of the congressional discourse emerges from the August 10, 1995, Senate Hearings on Crack Cocaine Sentencing.19 At the time, Senator Orrin Hatch (R-Utah) argued, “Crack cocaine is a killer drug” because “it is more addictive than powder and is more often linked to inner-city violence than any other drug.” Consequently, Hatch said, he was not persuaded that the proposed change to equalize the sentences should go into effect. Senator Dianne Feinstein (D-California) said that she had witnessed the devastation crack had brought to neighborhoods in California. Crack, she said, “is synonymous with guns, gangs, and violence.” The comments made by Hatch and Feinstein demonstrate the bipartisan nature of the belief that crack was the problem to solve—drugs had been reduced to crack—and that it was inextricably linked with black, poor, ghetto, gun, gang, and violence. Such claims were possible because society’s dominant group had previously framed African Americans as such. Policy elites can link issues of morality and public safety to race because this linkage resonates with the public’s view of reality as created and perpetuated, at least in part, by the media. Interestingly, by suggesting that the war on drugs is geared only toward African Americans and crack, policymakers can ignore the devastating effect of other types of drugs, such as powder cocaine, and other legal drugs, such as alcohol, while at the same time justifying their increased monitoring of the black community. U.S. Sentencing Commission Chairman Richard P. Conaboy testified that the commission had studied the crack/powder issue at length and in depth and had concluded that the sentencing disparity was unjust. “The Commission was troubled by the sentencing rules that provide disproportionately severe penalties for those convicted of trafficking in crack cocaine—penalties that are significantly higher than those for similar trafficking in powder cocaine,” he testified. “We were equally troubled by the fact that these penalties have great disproportionate impact on the poor and minorities in our communities.” He added, “[W]hen there is any injustice, we must be vigilant in our efforts to remedy it. But when government policy is unfair, or even when government policy is perceived to be unfair, our vigilance must be even greater.” When Commissioner Wayne Budd testified in support of rectifying the disproportionate sentencing between crack and powder cocaine, Hatch challenged him, arguing that when each crack trafficker is arrested, the arrest disproportionately benefits poor, black communities. Budd answered that the black community does want crack dealers treated harshly, but not unfairly. This exchange highlights the linking of crack cocaine with poor, black, urban residents, thereby framing substance abuse as something specific to one’s class and race. Such racialization of substance abuse allows supporters of harsher punishment of crack-abusing individuals to justify the racist

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policymaking process and implementation of such policies. Furthermore, this exchange shows how policymakers operate under the premise that they are the saviors of poor, black communities. This type of reasoning raises the question: If indeed we were engaging in a war on drugs, why did the state not play the same role for all types of substance abusers? Furthermore, the exchange also shows how, when race is introduced into the policy decision-making process, it can limit and curtail discussions on social justice. This type of exchange between Conaboy, Hatch, and Budd also demonstrates the bipartisan and ideological convergence on the issue of sentencing disparities that can use the symbolic equation of crack-equals-black to argue their point. It shows the easy and often skewed assumptions made by many who assume the parent/supervisor/monitor/ savior-of-the-black community role—Conaboy and Budd by addressing sentencing disparities and Hatch by “cleaning up” the black community to make it safe for blacks. Senator John Breaux (D-Louisiana) admitted that he was “honestly shocked” to learn of the sentencing disparity between crack and powder cocaine. After learning of it, he suggested, “The answer to the problem presented by this wide difference in penalties is not to lower penalties for selling crack cocaine but to increase the penalties for selling powder cocaine.”20 When Representative Adam Schiff (D-California) made a similar suggestion, Budd argued, “While this may sound appealing at first glance, there are several serious problems with such a proposal.” He further testified, “First, cocaine sentences are now quite severe, and at the current levels, we are incarcerating increasing numbers of defendants for increasingly long periods of time. We have received no serious complaints from Congress, law enforcement, or others that these levels are too soft.” Again, this exchange highlights how the social construction of a group can influence the types of policy used to target that group. Why is it that individuals abusing cocaine deserve less severe punishment? After all, crack is a derivative of cocaine. Underlying many of these claims are deeply embedded cultural images of African Americans. Stories that evoked negative stereotypes portraying African Americans as dishonest, lazy, and unable to control their basic instincts resulted in legislation such as the 1994 Federal Crime Control Act, which mandated increased penalties in drug offenses, mandatory minimum sentences, increased sentence lengths, and the “three strikes and you’re out” rule. These policies remain central weapons in the war on drugs and as means of crime control. Year after year, the Reagan and Bush administration crime bills increased penalties and extended mandatory minimum sentences to additional drug crimes. In addition, the conservative U.S. Sentencing Commission toughened penalties even more and insisted on their application. Consequently, prison populations quadrupled from 1980 to 2000, according to the Justice Policy Institute in Washington, DC. THE SPOILS OF WAR: A CLOSER LOOK AT FEMALE PRISONERS The war on drugs has had a proportionally greater effect on women than men in terms of increased arrests and incarcerations. Much of the increase in the rate of female incarceration is attributable to policies such as mandatory minimum sentencing for all

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drug offenses. In 1979, one in ten women in U.S. prisons was serving time for drugs. Among state prison inmates, drug offenses accounted for one of every eight women prisoners (12 percent of total) in 1986, but a decade later that number had risen to more than one in three (37 percent).This is compared to a rise from one in twelve (8 percent) to one in five (12 percent) for men during the same period.21 This war was described as an attack on drug dealers and “kingpins,” but an analysis of the prisoners shows that over one-third (35.9 percent) of the women serving sentences for drug offenses in the nation’s prisons are serving time solely for possessing narcotics,22 and nearly two-thirds of women inmates are of color. Minority women have clearly been affected disproportionately by the policies of the war on drugs. The numbers suggest that the so-called war has been neither race- nor gender-neutral. Instead, it has been a war waged silently against women, and especially black women.23 Typically, adult female offenders are young (usually under age 30), of color, undereducated, single mothers, poor, and recipients of social welfare services.24 Evidence shows that, as of 1991, black non-Hispanic women accounted for 46 percent of the 38,796 female inmates, with white and Hispanic women accounting for 36.2 and 14.2 percent, respectively. Before being arrested, 53.3 percent of incarcerated women were unemployed and 35.7 worked full time. Barely one in five were high school graduates, and nearly half were never married. Fifty percent of the women were between the ages of twenty-five and thirty-four years.25 In 1999, of the estimated 721,500 incarcerated parents, 55 percent of state and 63 percent of federal prisoners had minor children.26 Most female offenders are incarcerated for economic crimes as opposed to murder and manslaughter. As author and women’s rights advocate Jane Roberts Chapman’s work shows, drug abuse is associated with economic need and therefore relates directly to economic crime.27 Prevailing evidence supports this claim. For example, more than 50 percent of the female jail population in large cities is made up of convicted prostitutes.28 Using the gender entrapment theory, criminal justice scholar Beth Richie argues that the social construction of gender identity limits black women’s options for responding to violence in their intimate relationships and thus forces them to engage in illegal activities.29 These factors—economic necessity and domestic violence—have led feminist scholars who concentrate on issues of race/ethnicity and class to challenge the increasing incarceration of African American women and other women of color. Activist and professor of history Angela Davis is one of these researchers. She argues, “Contrary to most available sources—including those inside prisons and jails—it is not just a series of bad choices that land black women in prison but a deadly combination of reduced possibilities and extensive police targeting or public monitoring.”30 THE INTERSECTION OF THE WAR ON DRUGS, FETAL RIGHTS, AND RACE The war on drugs’ discourse resulted in the placement of a new group on the social landscape: the crack addict. Recent studies of the war on drugs in the 1980s provide an excellent example of how zealous anticrime policies and sympathetic media coverage can conspire to create violent images of a black underclass.31 Illicit drug use

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is a phenomenon that cuts across racial and socioeconomic categories. This is not, however, always the story that is offered to the public. Public policy scholar Shelly Geshan informs us that newspaper reports in the 1980s sensationalized the use of crack cocaine and created a new picture of the so-called typical female addict: young, poor, black, urban, on welfare, the mother of many children, and addicted to crack. In interviewing nearly two hundred women for Geshan’s study, a very different picture of the typical chemically dependent woman emerged. She is most likely white and divorced or never married. Her average age is thirty-one years, and she is a high school graduate on public assistance, the mother of two or three children, and addicted to alcohol and one other drug. It is clear from the women interviewed that substance abuse among women is not a problem confined to those who are poor, black, or urban. To the contrary, it crosses racial, class, economic, and geographic boundaries.32 The mass media play a role in systematically proliferating cultural images of African Americans because they transmit information between groups that often have little real-life contact with one another. The media can report the claims of policymakers, or they can create their own claims. Sociologist Joel Best informs us that when the media create their own claims they present “these problems within familiar frameworks and describe them in familiar terms.”33 For example, the media seem to heavily concentrate on the issue of “black-on-black” crime. Ignored in such stories are the causes of such crime and mention of the higher occurrence of “white-onwhite” crime. This might be the case because the dominant group has socially constructed African Americans as inherently criminally minded. The label of crack mother applied to some addicted women is another example of how the media influenced the discourse on crime. “Socially constructed as black and urban, the media demonized crack mothers as the threatening symbol for everything that was wrong with the United States.”34 New York City lawyer and pregnant women’s advocate Lynn Paltrow reviewed a number of newspaper articles dealing with the topic of crack babies, one of which appeared in Time magazine in 1991. The photographs used to depict the severity of the crack problem, she writes, “become more sinister as the subjects’ skin color becomes darker.”35 According to the U.S. Sentencing Commission in its 1995 Special Report to Congress, the “media played a large role in creating the national sense of urgency surrounding drugs, generally, and crack cocaine specifically.”36 Under the war on drugs, law enforcement increasingly targeted communities of color, and African American women specifically. One could ask whether this intense focus resulted from media attention or from policy direction and funding; it is difficult to separate the two factors. I believe that it was easier to single out this population for intense scrutiny because women of color could be easily used as political pawns. As political scientists Anne Schneider and Helen Ingram point out, policytargeted groups constructed as deviant and politically weak tend to receive punitive attention.37 Thus, the crack mother became yet another enduring symbol of the deviant black female—the bogeyman of society. Within this stereotyped media creation were condensed elements of the older symbols of black womanhood: the mammy

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who needed white supervision, the sexually uncontrollable Jezebel, and the matriarch with her overbearing approach to mothering. As a consequence, black women and poor women are singled out for prosecution. In 1990, physician Ira J. Chasnoff, social worker Harvey J. Landress, and Mark E. Barrett conducted a study in Pinellas County, Florida, that showed that 380 pregnant women in public clinics and 335 in private care were tested for drug use.38 Among white women, there was a 15.4 percent rate of positive test results; among black women, the figure was 14.1 percent. Black women, however, were nearly ten times more likely than white women to be reported to law enforcement authorities for substance abuse. Similar results appear in other states such as South Carolina. In 1989, the city of Charleston, South Carolina, launched a partnership with the local police department, prosecutor’s office, and a state hospital, the Medical University of South Carolina. The primary goal was to seek out and punish pregnant women and new mothers who tested positive for cocaine use. Between 1989 and 1994, when the program was suspended, forty-two women were arrested for illicit drug use while pregnant. Forty-one were black. All the women arrested tested positive for cocaine use,39 but they were tested for cocaine without their consent and without being served with search warrants, which is a violation of the Fourth Amendment, as was decided by the Supreme Court on October 4, 2001.40 To understand the criminalization of African American women and its relation to gender and race, it is first necessary to comprehend the historical evolution of the crack baby. In the early years after crack cocaine began to ravage many American cities, scientific research suggested that the children exposed to the narcotic in utero would suffer not only from immediate medical complications but also from longterm, irreversible neurological damage that would warp the children’s characters.41 In 1991, John Silber, then president of Boston University, claimed that this neurological damage would make such children incapable of “ever [achieving] the intellectual development to have consciousness of God.”42 The public was inundated with newspaper articles and supposedly extensively researched reports on the societal cost, particularly financial, of these children. The babies were projected, for example, to require more services in school than average children and would rely extensively on the foster care system. It was suggested by Joseph Califano Jr., former Secretary of Health, Education, and Welfare, that crack babies would cost approximately $1 million apiece in public funds to bring them to adulthood.43 According to media and reports by members of the policy elite, crack babies were destined to be welfare dependent and, eventually, criminals. Much of the negative construction of the crack baby was based on research that has drawn heated criticism from the scientific community.44 Recent research has isolated the methodological flaws of these earlier studies, including the lack of control groups, the failure to distinguish cocaine use from the use of other drugs, the failure to study the long-term health of the newborn, and the reliance on self-reported use and case reports to determine addiction or use.45 In comparison to the zeal with which they used the discovery of the crack baby, the media and the policymaking community had much less interest in reporting on research that challenged the social construction of these children as the new predators of society.

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Evidence gathered in a National Institute on Drug Abuse survey suggests that, “While African Americans had higher rates of drug use, in terms of actual numbers of users, most women who took drugs while they were pregnant were white.” Approximately “113,000 white women, 75,000 African American women, and 28,000 Hispanic women used illicit drugs during pregnancy.”46 Furthermore, there is a difference in types of drugs used during pregnancy. Black women were more likely to use cocaine, and specifically crack, in comparison to white women, who tended to use alcohol and cigarettes. “About 4.5 percent of African-American women used cocaine compared with 0.4 percent of white women. . . . Nearly 23 percent of white women drank alcohol and 24.4 percent smoked cigarettes. By comparison, 15.8 percent of African-American women . . . drank alcohol and 19.8 percent . . . smoked cigarettes.” According to Paltrow: Epidemiological studies find that statistically speaking many more children are at risk of harm from prenatal exposure to cigarettes and alcohol. In fact, one recent publication on women and substance abuse has created the label “Fetal Tobacco Syndrome” to draw attention to the extraordinarily high miscarriage and morbidity rates associated with prenatal exposure to cigarette smoke.47

Between 1979 and 1993, there has also been a sixfold increase in the incidence of fetal alcohol syndrome as reported by the Centers for Disease Control and Prevention. The assumption made about the pregnant substance abuser is that she shows a disregard for the future of her children and of her parental responsibility. Consequently, Califano has suggested that the children of addicted welfare mothers who allegedly refuse treatment ought to be taken from their mothers and placed in orphanages or foster care.48 Again, it is suggested that the state usurp the power of— predominately black—women over their own bodies and families. Here, the state serves as a sort of modern version of the slave mistress—monitoring and correcting, via punishment, the behavior of black women. Policies designed to address the needs of poor, drug-addicted pregnant women follow the “individual willpower” model—which suggests that these women could simply stop using drugs if they wanted to—while at the same time providing minimal drug rehabilitation support to them. This model is followed although the American Medical Association has unequivocally stated that, “[I]t is clear that addiction is not simply the product of a failure of individual willpower. Instead, dependency is the product of complex hereditary and environmental factors. It is properly viewed as a disease, and one that physicians can help many individuals control and overcome.”49 Despite the medical view that drug addiction is a disease, treatment for this population remains limited. Few drug treatment programs accept pregnant addicts and provide childcare services.50 Constructing the issue of pregnant, substance-abusing women as an issue of “individual responsibility” and “fetal rights” ignores such issues as malnutrition, male violence, lead paint poisoning, poverty, and racism. These types of issues appear to be immaterial to fetal rights advocates, but research shows that poverty and its effects have a greater effect than cocaine on a child’s developing brain. Reporting on a study

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that compared the effects of poverty and cocaine on brain development, Reuters journalist Alan Mozes states that a “decade ago, the cocaine-exposed child was stereotyped as being neurologically crippled—trembling in a corner and irreparably damaged. But this is unequivocally not the case. And furthermore, the inner-city child who has had no drug exposure at all is doing no better than the child labeled a ‘crackbaby.’”51 In addition, focusing public attention on crack use among minority women ignores the problems associated with other types of substance abuse such as alcohol and cigarette use. Are not the fetuses of white women also in need of protection? It appears that the purpose of crime policy, particularly drug policy, is to solidify the social construction of black women as Other. As such, policy seems more about safeguarding the power of whites—specifically the power to exert control over black women—than any altruistic concern for children of color. RESPONSE TO THE CRIMINALIZATION OF BLACK WOMEN The reliance of policy decision makers on negative cultural images of African American women is a central cause of these women’s circumscribed and limited access to resources. The use of negative images of black womanhood has contributed to the overrepresentation of these women among the poor and in the criminal justice system. As the above review of female prisoners shows, African American women are disproportionately represented among the incarcerated population, particularly the incarcerated poor. As a group, African American women offenders, in comparison to their white counterparts, are more often unemployed or working in low-income jobs and living below the poverty line. This indicates that black women’s involvement in crime is often related to their responsibility for meeting the economic needs of their families.52 Although the total number of African American women and their children who are living in utter poverty has diminished since the late nineteenth century, their relative numbers remain high. Poverty among black women cannot solely explain their overrepresentation in prison because white women make up a higher proportion of all impoverished women. In addition, as we have seen, white women are more likely to use drugs during pregnancy. With the race-inflected nature of crack use and its connection to a particular socioeconomic class, however, white women are not singled out for prosecution. The policy elite used and responded to the crack mother symbol—one of an incapable and irresponsible decision maker, a moral deviant, and an unfit mother that became synonymous with “bad” black women—by implementing increasingly punitive policies. The crack scare itself was a big policy issue. It was the discovery of the crack baby, however, and the accompanying suggestions of doom and destruction this child would inflict on society, that allowed the policy elite to resurrect and invoke negative images of black women into the discourse on crime. This thereby allowed them to treat white pregnant or parenting substance-abusing women differently from their black counterparts. Ultimately, the war on drugs came to be distorted, unduly focusing on women and black people. This war forced the black community to restructure itself in the individual, economic, and political realms. Many national legislators argued for a

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tough stance on drugs as a means of protecting children and promoting family stability. Fetal rights and child protection debates capture much of the rationale for punishing pregnant or parenting substance abusers. The desire to protect children has resulted in policies such as “Just Say No” and in judges’ decisions to incarcerate pregnant substance abusers even when they were not charged with drug use or sale. In Washington, DC, for example, Brenda Vaughn pled guilty to the minor offense of check forgery. The usual sentence for such a crime at that time was probation, but the judge decided that, because of Vaughn’s drug abuse, she should be incarcerated to protect her fetus. As of 1991, 65 percent of women and 56 percent of men in state prisons had children under the age of eighteen years; most of these women (72 percent) and men (53 percent) lived with their children before entering prison.53 Although in a small number of cases, such children were committed to foster homes or institutions,54 usually another family member assumed care of the children and of any elderly or disabled individuals who were displaced by the incarceration of these adults. Frequently, the family member who assumed such care was another woman— usually the maternal grandmother or great-grandmother. Because of the incarceration of black mothers, the black community has long been forced to engage in what may be termed other-mothering. There is strong evidence of the deep kinship ties within the black community. For example, although white female prison inmates were likely to receive more phone calls (25 percent) and letters (37.5 percent) compared with their black counterparts (14.3 and 12.4 percent, respectively), black women were likely to receive more visits (14.3 percent, compared with 0.79 percent for whites). Black children left behind were far more likely to be placed with grandparents (43 percent) than were white children (25 percent).55 Because imprisoned adults cannot contribute to their families’ financial well being, those engaging in other-mothering must provide basic child care including financial support. This is particularly difficult in homes that are already operating with limited financial resources. Earlier research informs us that in comparison to whites, blacks tend to have fewer resources and that their available resources are often less effective because the “social networks of African American women are often made up of others in similar structural positions.”56 Thus, one outcome of incarcerating black women is the exacerbation of poverty within their communities. In essence, this policy encourages and even promotes intergenerational poverty within this population, thereby making it much more difficult for these women to meet the needs of their families. The alternative to other-mothering, as implemented by justice departments on the federal and state levels, is the severance of parental rights. In 1997, the federal Adoption and Safe Families Act allowed states to permanently sever the parental rights of adults, whether incarcerated or not, whose children were in foster care for fifteen months out of any twenty-two-month period. In many cases, incarcerated women spend fifteen months or more awaiting trial. As a result, if an incarcerated mother has no alternative to the foster care system, she is likely to lose her parental rights regardless of the severity of the crime with which she is charged. The fate of children of incarcerated women has great consequences for society, especially in the

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black community. Approximately 200,000 children a year are placed in child welfare services, a number that disproportionately includes African American children. According to Dorothy Roberts, African American children are placed in foster care at higher-than-average rates because their parents are “the most likely to lose their [parental] rights” and their children are “the least likely to be adopted.”57 Children with incarcerated parents suffer from a number of psychological problems including trauma, anxiety, guilt, and shame. They are more likely to drop out of school, do less well in school, and abuse drugs including alcohol.58 Furthermore, “half of the 1.5 million children with an incarcerated parent will commit a crime before they turn 18.”59 In essence, the current crime policy perpetuates criminality, thus creating a ready-made clientele for the prison system. A lifetime ban from ever regaining custody of their children significantly affects the ability of women, the primary caregivers of these children, to curtail the negative trends common among children of incarcerated parents. This works counter to the expressed goals—to promote healthy and intact families, to work to end the culture of violence—of policymakers as they implement these controversial policies. Crime policies often claim they will change the behavior of black women and save their children, but we have seen that, in practice, these policies achieve just the opposite effects, exacerbating the cycle of poverty and drug use and guaranteeing that cycle’s continuation in the next generation by removing mothers from their children, rather than helping them to help themselves and their families. Interestingly, recent research suggests a mechanism for breaking this cycle. The National Institute on Drug Abuse research on women in drug treatment shows that, frequently, “once women were successfully detoxified and enrolled in a treatment program, their motivator to stay drug free is their children.”60 In theory, many policies are designed to curb drug use, cure poverty, and encourage two-parent households. As implemented, however, many fail to accomplish these goals. Instead they remove mothers from their children and their communities, and they exacerbate poverty within this community. In large part, these policies fail because they are formed on the premise that black mothers are inherently bad. In addition, incarcerating women during their childbearing years has a detrimental effect on the black community. It is not uncommon to see a twenty-one-year-old woman serving a twenty-four-year sentence: As prison sentences become longer, such women often have their children taken away. Crime policy, constructed to include mandatory sentencing, appears to be another method of effective sterilization. In essence, criminalization is another means for controlling black sexuality. Roberts argues, “the value we place on individuals determines whether we see them as entitled to perpetuate themselves in their children.”61 Like sterilization practices of the past, the incarceration of black women and the severance of their parental rights implies that they do not deserve to be mothers. Such laws deplete the community of natural resources such as human capital. Degrading black mothers in essence devalues their children—and ultimately the African American community—thus rendering them ineligible to benefit from socalled positive policies. American society has a long history of blaming black women for the problems of their communities. The most notable example in recent years is

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the infamous Moynihan Report.62 In this 1965 essay, the late sociologist and senator Daniel Patrick Moynihan argued that domineering, matriarchal black mothers created emasculated black men who were doomed to fail in school, abandon their families, and be unable to succeed economically. Sociologist Patricia Hill Collins writes that the black matriarchy thesis allows the dominant group to blame black women for the success or failure of black children . . . diverts attention from the political and economic inequality affecting black mothers and children, and suggests that anyone can rise from poverty if he or she only received good values at home.63

Black women’s right to marry and have other types of long-term personal relationships are also negatively affected by current crime policies. Much of the research in this area focuses on men. Thus, we can only extrapolate the effect such policies have on women. It is argued that men with prison records do not make attractive marriage prospects. After all, they are often limited in their ability to financially support a family or to be fathers to their children. The same argument can be made for women. In the current economy, both partners need to participate in the labor market to begin to overcome poverty. Women with prison records face the same hardships in securing jobs as men, thus diminishing them as marriage prospects. Incarcerating black women also affects their quest for economic freedom because it removes from them opportunities to engage in viable economic endeavors. Malecentered research indicates that young men’s prospects of engaging in legal work are thwarted by their involvement in the criminal justice system. Tonry asks, “[C]ould a community, black or white, survive or resist decay if a third to a half of its men were immersed in the justice system on any one day?”64 Similarly, we should also ask what will happen to a community in which women are being incarcerated at extraordinary rates and for extraordinary lengths of time. The debate about fairness in terms of sentencing disparities notwithstanding, we also should turn a spotlight on fairness as it relates to political participation—an issue often overlooked in policy debates. The electoral power in the black community is profoundly reduced by denying felons and sometimes exfelons (as is the case in many states) the right to vote. The political consequences are devastating. There is not only an immediate effect on voting but there is also a delayed effect, felt when the children of these incarcerated women join the voting public and they, too, are effectively disenfranchised. Such children often receive little or no political socialization, making them secondary victims of the justice system. Although one may argue that, incarcerated or not, African Americans tend not to participate fully in the political process through voting, this is not the only mechanism through which political socialization occurs. The simple act of commenting on a presidential candidate in everyday discussions, for example, exposes children to politics. Removal of the mother, often the primary caregiver, from these discussions eliminates much of the possibility for this political socialization between mother and child. This, coupled with the fact that a substantial number of children will eventually find themselves incarcerated and paroled, further disenfranchises the black community. The result is a cycle of disenfranchisement and wide-scale community disempowerment. Because black women

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are usually spoken about in policy rhetoric and their own voices rarely are heard, the disenfranchisement is exacerbated on the level of simple policy discussions. Thus, the problem is compounded and the black community is politically disarmed. DRIVEN BY FEAR: THWARTING EQUALITY AND FREEDOM To engage in a war requires that there be an enemy. Is the enemy of the war on drugs the availability of drugs or the abusers of drugs? It appears that this war, which targets African Americans, is focused on the abusers themselves. Casting African Americans as the nation’s internal enemy, as the war on drugs has done, is actually a continuation of the systematic construction of blacks as Other, as deviant. Using a term such as war indicates that some level of control is involved. To this end, the war on drugs should be viewed as a means of controlling black women. This policy is “extending into women’s lives like tentacles that grasp prey and squeeze it into submission.”65 The image of the crack mother, according to authors Jimmie Lynn Reeves and Richard Campbell, is a racially defined composite.66 Central to this composite is the issue of sexuality, particularly the link between sexuality and fertility. Because African American women inhabit a sex/gender hierarchy, the inequalities they confront have been sexualized. Hegemonic practices and ideology have allowed those in the dominant group to define their sexual behavior as the norm while categorizing the sexual behavior of oppressed groups as both deviant and threatening.67 It is often argued that African American women are incapable of making moral decisions concerning their sexuality; this sexuality, coupled with motherhood, has always been a source of concern in the United States.68 As a consequence, the stereotypes, myths, and images of race, poverty, and drug addiction, and their connectedness to sexuality and motherhood, have historically been used to justify efforts to regulate black female sexuality and procreation.69 The resulting social and political climate serves as the foundation for the incarceration of increasing numbers of African American women. The criminalization of African Americans, and African American women in particular, undermines and hinders any type of policy that might claim that its goal is to integrate them into the society at large. Continuing to define African Americans as Other discredits and thwarts their calls for freedom and equality. It suggests that members of this group must be controlled at all times and denied their basic rights to citizenship. Programs and policies affecting them are instituted despite evidence indicating that these policies fail to achieve the goals of, for example, promoting family stability or protecting children. Efficacy is obviously not the primary concern for policymakers. Rather, these policies seem to be driven by fear and a need to enforce the boundaries between whites and blacks. Mandatory prison terms and sentencing guidelines are designed to be gender blind. The data summarized in this article, as well as in other research, however, indicate that the implementation of such policies is far from gender neutral. The expansion of the women’s prison population in part results from increased rates of incarceration for drug law violations and less serious offenses. Women who end up in the justice system are there primarily as a result of joblessness, substance abuse,

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prostitution, homelessness, and poverty. Turning solely to law enforcement to address these issues ends up incarcerating black women and severing their parental ties—thereby exacerbating problems such as joblessness, poverty, and substance abuse. The incarceration of black women is particularly problematic and burdensome to the black community because these women are the primary caretakers of dependent children, and so the cycle continues. NOTES 1. United States v. Vaughn, crim. No F 2172-88 B (D.C. Sup. CT 1988); State v. Inzar, No. 90 CRS 960 & 61 No. 91165C778 (Super. Ct. of Robeson County April 9, 1991), appeal dismissed, No. 91-1SC778 (N.C. Ct. App., August 30, 1991; Commonwealth v. Smith, No. CR 91-05-4381 (Franidin City Cir. Ct. September 23, 1991); People v. Morabito (Geneva City Ct. January 28, 1992); Johnson v. State of Florida, 602 So. 2d 1288 (1992); People of the State of Michigan v. Hardy, 469 N. W. 2d App. 50 (1991); Crystal M. Ferguson, Et Al., Petitioners v. City of Charleston Et Al., 532 U.S. 67 (2001). 2. Drew Humphries, Crack Mothers: Pregnancy, Drugs, and the Media (Columbus: Ohio State University Press, 1999). 3. Dorothy E. Roberts, “Punishing Drug Addicts Who Have Babies: Women of Color, Equality, and the Right of Privacy,” Harvard Law Review 104, no. 7 (1991); Dorothy E. Roberts, Killing the Black Body (New York: Vintage Books, 1997); Paula C. Johnson, “At the Intersection of Injustice: Experiences of African American Women in Crime and Sentencing,” The American University Journal of Gender and the Law (1995). 4. Roberts, Killing the Black Body. 5. Diana Gordon, The Return of the Dangerous Classes: Drug Prohibition and Policy Politics (New York: W. W. Norton, 1994). 6. For an exploration of how crime operates through a complex series of class, gender, and race practices, see James W. Messerschmidt, Crime as Structured Action: Gender, Race, Class, and Crime in the Making (Thousand Oaks, CA: Sage, 1997). 7. Stephanie R. Bush-Baskette, “The War on Drugs as a War against Black Women,” in Crime Control and Women, ed. Susan L. Miller (Thousand Oaks, CA: Sage, 1998), 113. 8. Marc Mauer and Tracy Huling, Young Black Americans and the Criminal Justice System: Five Years Later (Washington, DC: The Sentencing Project, 1995), 20. 9. Michael Tonry, Malign Neglect (New York: Oxford University Press, 1995), ix; emphasis added. 10. Christine Rasche, “The Female Offender as an Object of Criminological Research,” in The Female Offender, ed. A. M. Brodsky, 9–28 (Beverly Hills, CA: Sage, 1975). 11. Craig Reinarman and Harry G. Levine, “The Crack Attack: Politics and Media in the Crack Scare,” in Crack in America: Demon Drugs and Social Justice, eds. C. Reinarman and H. G. Levine (Berkeley: University of California Press, 1997), 19. 12. The image of the matriarch is usually attributed to the research and writings of the late U.S. Senator Daniel Patrick Moynihan. See Moynihan, The Negro Family: The Case for National Action (Washington, DC: United States Department of Labor, Office of Policy, Research and Planning, 1965).

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13. President, Proclamation, “Remarks Announcing Federal Initiatives Against Drug Trafficking and Organized Crime,” The Weekly Compilation of Presidential Documents, Washington, DC, GPO, October 14, 1982. 14. J. A. Inciardi, The War on Drugs: Heroin, Cocaine, and Public Policy (Mountain View, CA: Mayfield, 1986). 15. President, Proclamation, “Remarks at a Town Meeting in Detroit,” The Weekly Compilation of Presidential Documents, Washington, DC, GPO, February 10 1993, pp. 157–202; also http://gpo.gov (accessed December 3, 2001). 16. George H. W. Bush, Public Papers of the Presidents of the United States: George H. W. Bush, 1988–1992 (Washington DC: GPO, 1990). 17. William Clinton, Public Papers of the Presidents of the United States: William Clinton, 1992–2000, 2nd vol. (Washington, DC: GPO, 1995), 1962. 18. Jann Wenner, “Interview with Bill Clinton (President of the United States),” Rolling Stone, December 28, 2000, p. 84. 19. Unless otherwise stated, the exchange presented is taken from the Senate Hearings on Crack Cocaine Sentencing, August 10, 1995. Senate Committee on the Judiciary, U.S. Sentencing Commission and Cocaine Sentencing Policy: Hearing Before the Committee on the Judiciary, 104th Cong., 1st sess., August 10, 1995. 20. Senate, Senator John Breaux of Louisiana speaking at the U.S. Sentencing Commission, Congressional Record (November 7, 1995), S16755. 21. T. Snell and D. Morton, Women in Prison (Washington, DC: Bureau of Justice Statistics, 1994), 12; Bureau of Justice Statistics, Prisoners in 1996 (Washington, DC: U.S. Department of Justice, 1997), 7. 22. Bureau of Justice Statistics, Prisoners in 1988 (Washington, DC: U.S. Department of Justice, 1989), 3. 23. Mauer and Huling, Young Black Americans, 20. 24. Rosemary C. Sarri, “Unequal Protection Under the Law,” in The Trapped Woman: Catch-22 in Deviance and Control, eds. R. C. Sarri and J. Figueira-McDonough, 375–93 (Newbury Park, CA: Sage, 1987). 25. Snell and Morton, Women in Prison, 5. 26. Christopher Mumola, Incarcerated Parents and Their Children (Washington, DC: U.S. Department of Justice, 2000). 27. Jane Roberts Chapman, Economic Realities and the Female Offender (Lexington, MA: Lexington Books, 1980). 28. Cora R. Mann, Female Crime and Delinquency (Tuscaloosa: University of Alabama Press, 1984). 29. Beth E. Richie, Compelled to Crime: The Gender Entrapment of Battered Black Women (New York: Rutledge, 1996). 30. Angela Y. Davis, “Women in Prison,” Essence September (2000): 150. 31. Jon Hurwitz and Mark Peffley, “Public Perceptions of Race and Crime: The Role of Racial Stereotypes,” American Journal of Political Science 41, no. 2 (1997): 395. 32. Shelly Geshan, A Step Toward Recovery: Improving Access to Substance Abuse Treatment for Pregnant and Parenting Women (Washington, DC: Southern Regional Project on Infant Mortality, 1993), 1. 33. Joel Best, “‘Road Warriors’ on ‘Hair-Trigger Highways,’” Sociological Inquiry 61 (1991): 328. 34. Drew Humphries, “Crack Mothers at 6: Prime-Time News, Crack/Cocaine, and Women,” in It’s a Crime: Women and Justice, ed. Roslyn Muraskin (NJ: Prentice Hall, 2000), 117.

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35. Lynn M. Paltrow, Punishment and Prejudice: Judging Drug-Using Pregnant Women, available at http://advocatesforpregnantwomen.org/articles/ruddick.htm (accessed October 5, 2001). 36. U.S. Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy (Washington, DC: U.S. Sentencing Commission, 1995). 37. Anne Schneider and Helen Ingram, Policy Design for Democracy (Lawrence: University Press of Kansas, 1997). 38. Ira J. Chasnoff, Harvey J. Landress, and Mark E. Barrett, “The Prevalence of Illicit Drug or Alcohol Use During Pregnancy and Discrepancies in Mandatory Reporting in Pinellas County, Florida,” New England Journal of Medicine 322, no. 17 (1990): 1202–6. 39. “State Responses to Substance Abuse among Pregnant Women 2001,” Alan Guttmacher Institute, Issues in Brief. 40. Ferguson et al. v. City of Charleston et al. 41. Chasnoff et al., “Temporal Patterns of Cocaine Use in Pregnancy: Perinatal Outcome,” Journal of the American Medical Association 261, no. 12 (1989): 1741–44. 42. Quoted in Katharine Greider, “Crackpot Ideas,” Mother Jones (July/August 1995): 53. 43. Ibid., 55. 44. For more in-depth analysis on this issue see: Chasnoff et al. “Temporal Patterns”; Mark G. Neerhof et al., “Cocaine Abuse During Pregnancy: Peripartum Prevalence and Perinatal Outcome,” American Journal of Obstetrics and Gynecology 161, no. 3 (1989): 633–38; Diana B. Petitti and Charlotte Coleman, “Cocaine and the Risk of Low Birth Weight,” American Medical Journal 80 (1990): 25–33. 45. See Robert Mathias, “Crack Babies” Not a Lost Generation, Researchers Say (Rockville, MD: National Institute on Drug Abuse, 1992); Linda C. Mayes et al., “Commentary, the Problem of Prenatal Cocaine Exposure: A Rush to Judgment,” Journal of the American Medical Association 267 (1992): 406–8; Barry Zuckerman and Deborah Frank, “‘Crack Kids’: Not Broken,” Pediatrics 89 (1992): 337–39. 46. Robert Mathias, “NIDA Survey Provides First National Data on Drug Use During Pregnancy,” National Institute on Drug Abuse 10 no. 1 (1995) . 47. Paltrow, Punishment and Prejudice. 48. Quoted in Greider, “Crackpot Ideas,” 55. 49. Quoted in Paltrow, David S. Cohen, and Corrine A. Carey, “Government Responses to Pregnant Women Who Use Alcohol or Other Drugs: Year 2000 Overview—An Analysis,” Women’s Law Project and National Advocates for Pregnant Women, October (2000), available at http://lindesmith.org/lindesmith/library/NAPWanalysis2.html (accessed October 5, 2001). Amicus Curiae Brief of the American Medical Association in Ferguson, et al. v. City of Charleston et al., U.S. Supreme Court, No. 99–936. 50. Egelko S. Galanter, M. H. Edwards, and K. Marinelli, “Treatment of Perinatal Cocaine Addiction: Use of Modified Therapeutic Community,” American Journal of Drug and Alcohol Abuse 22 (1996): 185–202. 51. Alan Mozes, “Poverty has Greater Impact than Cocaine on Young Brain,” Reuters Health (December 6, 1999). 52. See the following works for a more complete analysis of the variables that explain women’s involvement in crime: Jennifer James, “Motivation for Entrance into Prostitution,” in The Female Offender, ed. Laura Cites (Lexington, MA: D. C. Heath, 1976), 125–39; Mimi Silbert and Ayola Pines, “Occupational Hazards of Street Prostitutes,” Criminal Justice and Behavior 8, no. 4 (1981): 395–99.

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53. K. Maguire and A. L. Pastroe, Sourcebook of Criminal Justice Statistics, 1993, U.S. Department of Justice, Bureau of Justice Statistics (Washington, DC: GPO, 1994), 616. 54. Ibid. 55. Zina T. McGee, “The Pains of Imprisonment: Long Term Incarceration Effects on Women in Prison,” in It’s a Crime: Women and Justice, ed. Roslyn Muraskin (New Jersey: Prentice Hall, 2000), 211. 56. Katheryn Edin and Kathleen Mullan Harris, “Getting Off Welfare and Staying Off: Racial Differences in the Work Route off Welfare,” in Latinas and African American Women at Work, ed. Irene Browne, 270–301 (New York: Russell Sage Foundation, 1999). 57. Dorothy Roberts, “Access to Justice: Poverty, Race, and New Directions in Child Welfare Policy,” Journal of Law and Policy (1999): 71. 58. Denise Johnston, Jailed Mothers (Pasadena, CA: Pacific Oaks Center for Children of Incarcerated Parents, 1991). 59. Tamerlin Drumond, “Mothers in Prison” Time, November 6, 2000, p. 106. 60. National Institute on Drug Abuse, Pregnancy and Drug Use Trends 2002, available at http://www.nida.nih.gov (accessed October 28, 2002). 61. Roberts, Punishing Drug Addicts, 1472. 62. Moynihan, Negro Family. 63. Patricia Hill Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment (New York: Rutledge, Chapman, and Hall, 1990), 74. 64. Tonry, “President Clinton, Mandatory Minimums, and Disaffirmative Action,” Tikkun 13, no. 6 (1997): 34. 65. Susan L. Miller, “Connecting the Dots: Women, Public Policy and Social Control,” in Miller, ed., Crime Control and Women, 182. 66. Jimmie Lynn Reeves and Richard Campbell, Cracked Coverage: Television News, the Anti-Cocaine Crusade, and the Reagan Legacy (Durham, NC: Duke University Press, 1994). 67. Audre Lorde, Sister Outsider: Essays and Speeches (Trumansberg, NY: Crossing Press, 1984); Carole S. Vance, “Pleasure and Danger: Toward a Politics of Sexuality,” in Pleasure and Danger: Exploring Female Sexuality, ed. Carole S. Vance (Boston: Rutledge and Kegan Paul, 1984). 68. Roberts, Killing the Black Body. 69. L. Maher, “Punishment and Welfare: Crack Cocaine and the Regulation of Mothering,” Women and Criminal Justice 3, no. 2 (1991): 35–70; Maher and R. Curtis, “Women on the Edge of Crime: Crack Cocaine and the Changing Contexts of Street-Level Sex Work in New York City,” in Crime, Law, and Social Change 18, no. 3 (1992): 221–58.

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A BAD RELATIONSHIP: VIOLENCE IN THE LIVES OF INCARCERATED BLACK WOMEN Nikki Jones

COLLATERAL CONSEQUENCES The number of female prisoners increased 108 percent during the last decade.1 The incarceration rates of women reflect the same racial and ethnic disparities observed in incarceration rates of men in the United States. For example, black women were more than three times as likely as Hispanic women, and six times more likely than white women, to be in prison in 2000.2 Furthermore, 44 percent of women under correctional authority have been physically or sexually assaulted at some time during their lives. Sixty-nine percent of these women report that their victimization occurred before they turned eighteen years old.3 Often, women who disclose their experience with violent victimization while incarcerated are talking about the violence in their lives for the first time, despite the fact that over the last twenty-five years, “violence against women has entered into public discourse as a pressing social problem.”4 Most feminist scholars and activists agree that the entrance of violence against women into public discourse represents a victory won in battles fought by the Women’s Liberation Movement. However, this victory is not without its limitations. In Compelled to Crime: The Gender Entrapment of Battered Black Women, Beth Richie argues that although some women are more protected from physical and sexual abuse than they were thirty years ago, there are groups of women that remain in “serious physical and emotional danger.”5 Specifically, there is still a high rate of violent victimization in the lives of incarcerated women—a disproportionate number of whom are poor and black. This suggests that although some women receive help, the movement resulted in a failure to deliver necessary services to poor, black women.

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Among the responses to a health survey questionnaire that I administered in a city jail, many of the incarcerated women said that they had experienced various forms of physical and sexual abuse.6 Their experiences, detailed in this article, highlight the practical consequences of an antiviolence movement that did not fundamentally challenge the racialized structures and systems that affect black women. For example, one of the dominant organizing slogans of the feminist antiviolence movement was that sexual and physical violence cut “across all class lines,” but as critical race theorist Kimberle Crenshaw argues in Mapping the Margins: Intersectionality, Identity Politics and Violence Against Women of Color, the strength of this organizing slogan relied on stereotypical assumptions about the “natural” occurrence of violence in poor, black, inner-city neighborhoods.7 To view violence against women as a real social problem, activists, lawyers, and politicians had to repeatedly assert in various arenas that violence against women was not just a lower-class problem. The racialization of the woman in this discourse—through the consistent practice of defining battered and victimized women in terms of who they are not—had the effect of giving voice to some while requiring that others remain silent. This type of exclusionary rhetoric pushed poor black women to the margins of the antiviolence discourse. At the margins, poor black women occupy the position of “outsiders within” the violence against women movement. Patricia Hill Collins uses the term “outsiders within” to describe the “social locations or border spaces occupied by groups of unequal power.”8 For example, black women within a society characterized by racial and gender inequality occupy the position of “outsider-within” in the social group of “women.” That is, although black woman appear to belong to the group, this membership does not translate into first-class treatment. The extension of Hill Collins’s theoretical framework of the antiviolence movement strengthens our understanding of how an antiviolence movement that claims to encompass all women actually excludes black women. THE CONSEQUENCES OF A RACIALIZED ANTIVIOLENCE DISCOURSE Today, the practical consequences of the antiviolence movement’s exclusion are clear. Researchers and activists have not actively explored the qualitative experiences of violence in black women’s lives within a racialized society characterized by various forms of inequality.9 Most institutional agendas ignore black women’s experiences with violence and refrain from developing productive and protective remedies to their issues. The poor, nonwhite women—on whose backs institutional remedies for other women were developed—are left vulnerable to a system of mass incarceration that targets them. The extent to which these three consequences are related is the “bad relationship” to which I refer in the title of this chapter. Despite gains in the theorizing of violence against women of color by women of color and other feminists, the components of this relationship both individually and as a whole still need to be critically explored in theory and research.

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SETTING: INSIDE A CITY JAIL The following description of my experience interviewing women in a city jail highlights the various forms and consequences of violence in the lives of incarcerated women, including the complicated relationship between experiences with violence and women’s entrance into jails and prisons. These types of stories must inform the structure of a movement that adequately captures and speaks to the relationships among violence, crime, and incarceration in the lives of black women and others who are vulnerable to the machinery of a racialized system of mass imprisonment.10 As a research assistant for a university-based research project working to assess the health needs of women on their entry into jail, I issued a standard health questionnaire to women inmates. As a black woman in my mid-twenties, I was acutely aware of the similarities I shared with the women I sought to interview.11 We were women of color in general, and black women in particular. We had grown up in predominantly black neighborhoods, although the neighborhoods of the responding women were likely more economically distressed than mine. Through our conversations, I gathered that we were familiar with drug trafficking, the violence associated with drugs, and the violence experienced by women in their everyday lives. We knew that the jail we were in was full of women who looked like us. We also knew that I was different. I came to interview them, and I would leave, and although we all understood that my access to the outside did not necessarily guarantee my safety, I still would be going home at the end of the day, and they would not. I made the thirty-minute drive from my home in the center city area to the city’s Prison Industrial Complex once a week. I interviewed women, most of whom were not white, from C Block, an intake and holding block in a large metropolitan city jail. When I usually arrived at 9 a.m., most of the women would be out of their cells and milling around the cafeteria-style sitting area in the middle of the triangular block clad in bright orange jumpers. They were out of their cells for the first time in twenty-three hours, and their voices generated a steady hum. The guards’ authoritative screams, transmitted over the P.A. system, periodically interrupted their conversations. At 10 a.m., the women reentered their cells for the remainder of the day. It was at this time that the women, one by one, were allowed to leave their cells to complete the Woman’s Health Project survey. The survey contained questions about past medical history, drug and alcohol abuse, and relationships. During these interviews, the women spoke with overwhelming regularity of physical and sexual abuse, as well as serious drug addictions.12 Several women I interviewed reported either witnessing or experiencing physical abuse. One young woman, jailed on a retail theft charge, disclosed that the father of her children hit her. She also reported that her father hit her mother “a lot” for “as long as I can remember” until finally she and her sister “jumped him” in an effort to intervene in the violence against their mother. Several women reported that they witnessed their fathers hitting their mothers while growing up. Women also reported being involved with partners who hit, kicked, or punched them in the past. Other women reported personal experiences with both physical and sexual victimization. One young woman in her early twenties, in this jail for the second time in nine months, told me that her boyfriend and her father hit her. She later disclosed

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that both she and her twin sister were beaten and sexually assaulted by her mother’s boyfriend while growing up. Jesse, a thin, light-skinned woman who was arrested for simple assault after a fight with the father of one of her children, tells me that this same man had “hit, kicked or punched” her in the past. When I asked my standard survey question “if any adult had forced her to have sex” while growing up, her face became tight and she broke the steady lock on my eyes that she had maintained throughout most of the interview. She paused for a moment, sighed, and let go a short laugh as she drew back the tears that threatened to stream down her face. “Man, I just told on myself, huh?” she said. She later disclosed that she was sexually assaulted at some point in her life; however, she chose not to disclose by whom. Although few women disclosed a direct causal link between their past experiences with abuse and their arrest for drug violations or their current drug addictions, these experiences certainly seemed correlated. That is, the women who were incarcerated on drug charges disclosed past experiences with various forms of violence as well as substantial addictions to serious drugs. For example, Tracy, a dark-skinned woman in her mid-twenties who has been arrested for a probation violation of a previous drug possession charge, reports that she was hit by her ex-husband, whom she married when she was seventeen years old. When I asked Tracy about her history of drug use, she responded that she used crack nearly every day, in addition to downers, barbiturates, and heroin. Her shaky hands and impatience with my seemingly redundant questions accentuated her battle with withdrawal. In the past, she had exchanged sex for money to support her drug habit. Another young woman I spoke to, in jail on a charge of narcotics possession with intent to deliver, reported several experiences with both physical and sexual abuse. While growing up, she was beaten by an adult, was forced to have sex with her uncle, and was raped by a stranger. This same woman reported using marijuana on a daily basis and crack or cocaine almost daily. The complicated relationships among past experiences with violence, drug use, and incarceration are also highlighted in the experiences of women who are arrested on charges other than drug possession. Consider the brief summary of Sheila’s story, taken from my field notes: Sheila is a nearly thirty-year-old black woman with a hazelnut complexion. She is about 5’ 6” and one hundred and twenty pounds. During our interview, she explained that she has been charged with theft. She then quickly clarified that she was an accomplice. She then offered an additional clarification. Sheila said that last night, while in a car, she was exchanging oral sex for money with a man she knows from doing drugs. When she was done, Sheila said, this guy didn’t want to pay her because she didn’t finish the job. Sheila tried to explain that his dissatisfaction with her performance was his problem and not hers. The man dismissed this explanation. Sheila finally said, “No, you gotta pay me.” So, Sheila continued, he said “[all right,] let me just go to my people’s house to handle something.” Sheila agreed and the two drove “somewhere.” Then this guy stopped the car and got out. After a few minutes, an officer walked up to the car and told Sheila that her boyfriend was driving a stolen car and was wanted for a drive-by shooting. Sheila quickly responded: “That’s not my boyfriend; that is just some guy I know from doing drugs.” The officer arrested her as an accomplice to auto theft.

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Later in the interview, before we got to the question about past history with violence, Sheila told me that her stepfather severely sexually abused her when she was a young girl. Sheila explained that as a result of this abuse “her entry is torn up” and her ovaries are damaged. She said that she is now unable to give birth. After we completed the interview, I asked Sheila if she had any questions or recommendations about the structure of the interview. Sheila said: “instead of the trauma survey, you should just ask how women cope with the trauma.”

Hearing stories like Sheila’s repeatedly made it clear to me that she and her counterparts represent the poor, nonwhite women on whose back the mainstream antiviolence movement was built, both theoretically and in everyday life. Ultimately, the experiences of the women with whom I spoke highlight the unique problems associated with the position of outsider-within. For severely marginalized women who experience physical and sexual abuse, their location as “outsiders-within” the violence against women movement results in a perverse contradiction. That is, because these mainly poor, black women are women located in a specific sociohistorical context, they can be—and are—raped and beaten. However, because they are poor, black women located in a specific sociohistorical context, they are largely prevented real access to the help women can receive as a result of the mainstream antiviolence movement. INCARCERATED WOMEN AS PRODUCERS OF CRITICAL THEORY My experience interviewing women in this jail also made it clear to me that Sheila and her counterparts are not merely subjects for researchers to study. Rather, they are the producers of the type of critical thought that must inform the fight against violence in the lives of incarcerated women—and indeed in all women. Sheila’s suggestion that we not waste time asking women about whether or not they have experienced a trauma, but rather ask them directly how they cope with it, is evidence of knowledge acquired in the role of outsider-within. Sheila knows that the likelihood that women in this setting have experienced some type of physical or sexual abuse is high. Cut to the chase, she suggests, and find out how they deal with it. The women with whom I spoke dealt with the violence in their lives in a variety of ways, including denial, depression, anger, violence, and drug abuse. Often, women’s reliance on this last method, a criminalized form of “self-medication” (which includes the prescription drugs to which women in other social locations have legal access), played a complicated yet significant role in their incarceration. That is, these women’s efforts to deal with the various forms of violence in their lives made them even more vulnerable to a system of mass incarceration that is fueled by a federally sponsored war on drugs that targets black people. EFFECT ON SOCIAL JUSTICE Applied together, the theoretical work of Richie, Crenshaw, and Hill Collins, and the critical thought produced by incarcerated women, provides academics and activists today with new tools. We can use this information not only to critique the racial

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politics of particular social movements but also to inform a movement that challenges previous limitations as we continue to fight for social justice. The project before us requires that we address violence against black women in all its forms while simultaneously challenging a racialized system of mass incarceration. The fight for social justice in this area must be waged both inside and outside of the academy. Academics need to critically explore black women’s experience with violence. This type of theorizing should locate black women in the center of theoretical discussions and also recognize black women not merely as subjects but also as creators of social/feminist thought and theory.13 Such research is not always well received inside or outside of the academy; thus, we must also challenge the reluctance within our own respective communities about addressing violence in the lives of women whose male counterparts are equally vulnerable to the attacks of a racialized system of mass incarceration. As “Sister Outsider” Audre Lorde warned feminists fighting for change, “My silence had not protected me. Your silence will not protect you.”14 In this battle, silence will only do black women, and men, more harm. I argue that the way to fight this battle against violence in the lives of black women is not to advocate for silence but, rather, to place women’s experiences with violence within the context of a racialized society characterized by various forms of inequality that work on—and in—individuals’ lives in complicated ways. It is only within this context, as Angela Davis suggested over twenty years ago, that this violence against women makes any sense at all.15 Citizens and activists must also use theory and research to campaign for the necessary productive and protective remedies for black women to better their lives in general, and to deal with their experiences with violence in particular. Further, we must use research that critically explores the violence in the lives of incarcerated women to campaign against the types of institutionalized agendas that would prove harmful for particular groups of women while benefiting others. For example, although we must challenge domestic violence in all communities, we must also reconsider the mandatory arrest policies that were implemented across the country despite evidence that such policies would likely place women who live in economically distressed communities in greater danger of experiencing subsequent violence while increasing the safety of women in more economically secure communities.16 We must also challenge the salience of the “underground economy” in distressed communities as well as the war on drugs, both of which have substantially increased the vulnerability of black women to the attacks of a system of mass imprisonment. In this sense, the fight against violence in the lives of incarcerated women and the fight against a racialized system of “criminal injustice” are intimately associated with the fight for economic justice, and all of these are, of course, tied to the larger project of social justice. This may seem to be a more difficult battle to wage than the fight against a violence that is conceptualized as being disconnected from larger systemic inequalities. That is, it is easier to talk about violence as an individual pathology than it is to think about violence as a product of systemic inequalities that act on and through individuals in ways we don’t yet fully understand. Theorizing violence in this way is difficult, but necessary. Difficulty alone is not a good enough excuse for academics, activists, or feminists to disengage from creating new ways to challenge both violence against all women and a racialized system of mass incarceration. I argue that all progressive

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work within a patriarchal racist heterosexist society is difficult. Undoubtedly, it is the “degree of difficulty” that reflects the critical importance of engaging in these battles in the first place. NOTES 1. Allen J. Beck and P. Harrison, Prisoners in 2000 (Washington, DC: U.S. Department of Justice, 2001). 2. Ibid. 3. Lawrence A. Greenfield and Tracy Snell, Women Offenders (Washington, DC: U.S. Department of Justice, 2000). 4. Beth Richie, Compelled to Crime: The Gender Entrapment of Battered Black Women (New York: Routledge, 1996). 5. Ibid, 12. See also Beth Richie, “A Black Feminist Reflection on the Antiviolence Movement,” Signs: Journal of Women and Culture in Society 25 (Summer 2000): 1133–37. 6. The research experience I reflect on here took place from March to May 2001. Data were collected as part of the Women’s Health Project conducted by researchers at the University of Pennsylvania School of Medicine. 7. Kimberle Crenshaw, “Mapping the Margins: Intersectionality, Identity Politics, and Violence Against Women of Color” in Critical Race Theory: The Key Writings that Formed the Movement, 357–83 (New York: New Press, 1995). 8. Patricia Hill Collins, Fighting Words: Black Women and the Search for Justice (Minneapolis: University of Minnesota Press, 1998), 5. 9. Richie, Compelled to Crime, 9–13. The lack of critical explorations of black women’s experiences with violence is not merely the fault of the racial politics of the Women’s Liberation Movement. The tendency to not want to “air dirty laundry” is also responsible for the lack of attention paid to violence against women of color. I briefly address this point later in this chapter. 10. An extended discussion of how women consider and respond to threats of dating and sexual violence, including how women disclose stories of victimization within the city jail, is featured in my dissertation, “Girls Fight: Negotiating Conflict and Violence in Distressed Inner-City Neighborhoods,” University of Pennsylvania, 2004. 11. Although a certain solidarity was assumed because I was black, several women also observed that I was “mixed,” or perhaps Puerto Rican. These variant perceptions of my racial identity, however, did not remove me from the general category of “women of color” or, perhaps more significantly, nonwhite. 12. All names are pseudonyms. I have also altered some identifying information. 13. Richie, Compelled to Crime; Collins, Black Feminist Thought: Knowledge, Consciousness, and the Politics of Empowerment (New York: Routledge, 2000). 14. Audre Lorde, “The Transformation of Silence into Language and Action,” in Sister Outsider: Essays and Speeches By Audre Lorde (New York: Crossing Press, 1984), 41. 15. Angela Davis, Women, Race, and Class (New York: Random House, 1981), 201. 16. Lawrence Sherman, Policing Domestic Violence: Experiments and Dilemmas (New York: Free Press, 1992); and Deborah Sontag, “Fierce Entanglement,” New York Times Magazine, November 17, 2002.

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P A R T

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RACISM, LAW, AND PUBLIC POLICY

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C H A P T E R

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REASSESSING RACE SPECIFICITY IN AMERICAN LAW AND PUBLIC POLICY Lorenzo Morris and Donn G. Davis

A critical assessment of American approaches to “race” in public policy and judicial interpretations of race-related law shows that uncritical nineteenth-century concepts of race are pervasive. Current ambiguities in racially focused law and policy often result from naive, asocial concepts that are untenable in current social science. The 1954 Brown decision, although seminally valuable, amends but perpetuates narrowly individualistic, physical concepts of race that harken back to Plessy. Reviews of a variety of desegregation and affirmative action cases and related laws serve to demonstrate the persistent conceptual ambiguities on race in judicial interpretation. INTRODUCTION The celebration of a major social and political victory in the wake of a protracted and intense struggle often leads to euphoric exaggerations of what has been achieved. A national sigh of relief following hard-fought political struggles can easily give way to misconceptions and false perceptions about the degree of substantive sociopolitical transformation the struggle may have brought about in the basic rules and distributive processes of the society. The successful passage of the American civil rights movement from protest to “legitimacy,” and the more open participation in traditional forms of electoral and conventional American politics, and from disruption to institutionalization under the law, gave rise to so much rejoicing that it may have obscured the persistent failures lying just beneath the surface of law and the “new” standards of adjudication fought and prayed for by the faithful. The passion of the 1960s for change, and the enthusiasm for the progress made in race relations, have left a legacy of misconceptions and now palpable and spreading disappointment over the status of race relations in American law and public policy. The tangible hallmarks of progress in American race relations, substantial as they may be, distort and disguise the scarcely altered continuity of the traditional legal and political structure and the

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time-honored patterns of dealing with historically entrenched racial inequality and discrimination in American society. The long judicial altercation over affirmative action from Bakke to the recent Michigan cases has finally begun to draw attention to the soft underbelly of the institutional process. Of course, the tangible policy products of the legal and political processes have changed dramatically since the 1954 Brown decision. Had the expectations surrounding Brown been limited to the promise of delegitimating racial segregation, the celebration might not have been premature. Yet, popular expectations, as well as the claims of political leadership, went far beyond the reform of discriminatory law to the assertion of a fundamental transformation in societal perceptions of African Americans and a radically altered set of values regarding race in America. All that had changed, however, was the consistency and conformity of the application of law to racial discrimination along with public awareness of civil rights inconsistencies.1 In a fundamental sense, however, old legal and public policy standards on race had been preserved. Accordingly, the groundwork for the hoped-for change in the legal status of racial inequality before the law and the treatment of racial issues in American public policy has gone relatively unchanged.2 In terms of the guiding principles of American public policy on race, the law, including the civil rights laws, merely defines the parameters of the boundary conditions within which the public choices are to be made and the methods by which they may be implemented. The recentness of most civil rights law encourages the perception of these laws as part of a continuing policymaking process when, in fact, most modern civil rights legislations embody the fundamental preferences of a bygone period in American politics. The codification, or putting into legislation, of these established policy preferences (consensus) may constitute no more than a refinement or implementation of old policy. In other words, what legislators in the 1960s felt compelled to translate into law, and what judges felt the need to affirm in their decisions, were established principles of law in need of adaptation or refinement suitable for a different time. A change of legislative or judicial “policy” was thus initiated primarily in an effort to reaffirm old law in the face of new societal pressures. The visible evolution of American civil rights from the nineteenth century to the present is widely interpreted as an uneven but relentless movement toward an increasingly race-conscious exercise of public authority. Government responsibility for the equitable treatment of African Americans is frequently understood to flow historically from the identification and attempted rectification of government-sanctioned injustices imposed on them in the past.3 Yet, given persistent pressure, it has been the failure to officially define and quantify the injustices, or at least the failure to examine their racial content, that gives rise to the recent highly generalized, raceneutral legislation.4 The history of African American political protest can be generally characterized as a series of protests around goals of open access and benefits for African Americans as a whole. The focus on race in the initiated stage of political action is usually so strong that the public expression of a movement’s goal generates a public response. By the time the goals are translated into law and public policy, however, the focus on race is completely diluted. By contrast, equality, albeit interracial, is given new meaning.

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The elimination of a race-conscious focus for public policy and law, and not its articulation, it may be argued, has been the overall by-product of the presumed historical progress toward civil rights protection. As African Americans increasingly turned national attention toward their particular interest, national public authority has inclined to move toward redefining that interest as racially indifferent, national interest. This definitional inclination is, however, without a foundation or any real transformation of this interest and its outcome. The needed transformation will be explored first through a look at the concept of race in twentieth-century judicial interpretation. Rather than demonstration a liberating evolution of race relations, there is an overlooked continuity and consistency in the legal concepts of race that emerged from the nineteenth-century endorsement of segregation and lasted through its rejection in the 1960s. Second, this continuity, it will be argued, is only broken by the changing evolution of the federal government’s responsibility for mediating or remediating the social disruption that the uniformed intervention of lesser public authorities may have caused. Government is seen as engaged in short-term corrections rather than lasting and enduring adjustment. Third, the adjustments are fundamentally oriented toward reducing government involvement in racial issues. Race, as opposed to race relations, was seen by courts, in the nineteenth century as beyond the purview of government regulation. In the twentieth century, it was seen as something that should be beyond its reach. Chief Justice Roger B. Taney’s dicta in the Dred Scott case (1857) made this abundantly clear.5 The political pariah status of the “negro African race” was determined not only by its physiognomy and commonly recognized property status but also by universal social convention (read policy), which held that the race was “an inferior class of beings”;6 “for more than a century regarded as beings of an inferior order, and altogether unfit to associate with the white race, in either social or political relations; and so far inferior, that they had no rights which the white man was bound to respect.”7 Further, leaving no room for misunderstanding, Chief Justice Taney claimed that “This opinion was (at that time) “fixed and universal in the civilized portion of the white race.”8 Of equal importance, the Chief Justice, anticipating, no doubt, that some might question whether there might be some divergent or contrary opinion manifested by the legislatures of the several states then constituting the Union, addressed this possibility: “Their statute books are full of provisions in relation to this [inferior] class. . . . They have continued to treat them as an inferior class, and to subject them to strict police regulations, drawing a broad line of distinction between the citizen and the slave races, and legislating in relation to them upon the same principle which prevailed at the time of the Declaration of Independence.”9 What should never be lost in any assessment of this brutally plain language of the Chief Justice is the fact that he was interpreting the paramount legislation of the land, the U.S. Constitution. Is it possible to say that his interpretation, relying, as it did, on the history that he knew, the social and political “axioms and morals” of the “civilized white world,”10 the Declaration of Independence, the Constitution, and the state legislatures, was race neutral?

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How, then, does the current century’s legislative, judicial, and public policy avoidance of race-specific redress of inequities manage to thrive in the wake of such blatantly race-specific language; language that was sanctioned by the nation’s highest court? The prevailing approach to race as a subject unsuitable for legal prescription and public responsibility serves to deform public approaches to compensation and disadvantage. What started out with a strong race-conscious focus and an egalitarian base was transformed into the affirmative action policies we know today. The dilution of the policy goals sought by reformers flows logically from the assertion of a traditional approach to disadvantages. In this approach, all compensatory disadvantages must be recognizable as disadvantages that everyone may feel and, theoretically, experience. This is the reasoning that supports the dubious concept of reverse discrimination, litigated in a line of cases that began most auspiciously with Bakke (1978) and, while continuing, had what has thus far been their greatest effect with the Hollywood (1996) case, in which the U.S. Fifth Circuit Court struck down the admissions policy of the University of Texas, Austin School of Law, and legally prohibited the use of race entirely in the admissions policies of public institutions of higher education throughout the Fifth Circuit.11 Fourth, the language of legislation and policy regulation has been developed around the wholly interracial and universalistic ideal that the only real measure of inequality is one that includes material assets. That is to say, it is a form of inequality open to all and tolerated by everyone, as long as it is consistent with competition. Finally, the protest that gave rise to policy intervention may be expressed by the protestors in race-specific terms, but either the legislative or the legal process will inevitably strip the policy of any meaningful racial content. This is precisely what occurred after Congress—at the urging of black political activists who claimed to be victimized by a combination of vote dilution by racial gerrymandering and burdensome at-large electoral systems—amended Section 2 of the 1965 Voting Rights Act with the intent of forcing state and local election officials to create election district boundaries that would enhance the possibility of blacks being able to elect officials of their choice.12 The results seen over the decade 1982–92 were dramatic: a near doubling of the size of the number of black Members of the U.S. House of Representatives (from twenty-four to forty) and the election of hundreds of new black officials at the state and (mostly) local levels of government. The result, predictably, was a bevy of lawsuits challenging several of the new congressional districts on the grounds of racial gerrymandering. The most prominent of these was Shaw v. Reno (1993), 13 in which a five to four majority of the U.S. Supreme Court decided in favor of appellants who argued that North Carolina’s Twelfth Congressional District had been drawn solely for the purpose of creating a majority black districtand that the “redistricting legislation that led to the creation of the district”—was so bizarre on its face that it [was] unexplainable on grounds other than race.” Writing for the Court, Justice Sandra Day O’Connor concluded that aspects of the reapportionment plan failed to reflect common interests and characteristics other than skin color and had “an uncomfortable resemblance to political apartheid.”14 The problem, of course, is that this view takes the “compelling state interest” argument rather lightly, considering the fact that the state had not had a black representative since

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Reconstruction, and inclines toward being ahistorical by not considering why no black had been elected for so long.15 BACKGROUND OF RACE SPECIFICITY As for the legal principles guiding public policy on racial issues, the 1954 Brown decision, with its dramatic consequences for desegregation, appears to have broken dramatically from the fundamental guidelines of prior civil rights law. There was so much rejoicing over what Brown had done in overturning the segregationist precedent established by the Plessy decision that what Brown preserved and even reinforced in Plessy has been virtually overlooked. In its fundamental guidelines for the treatment and definition of racial issues, Brown, it will be argued, substantially confirms Plessy. The Supreme Court preserved the parameters and concepts of race before the law expressed in Plessy but changed the focus to allow greater freedom for the government in the regulation and implementation of public policy and constitutional law. The focus this time was more on the power and potential for government intervention and less on the subject of the intervention. The question of race facing American society may have always been whether blacks and whites should live in racially segregated, desegregated, or integrated patterns. We know, for example, that this question greatly troubled Presidents Thomas Jefferson and Abraham Lincoln, as well as many of their countrymen of the day— both black and white. But that was not the question before the courts in the 1950s. The primary question for adjudication was, rather, concerned with what role the government should play in the interracial relationship as it evolved under its own societal impulses. Whether American society should or should not be desegregated through the force of government intervention was at issue only insofar as other governmental responsibilities compelled government intervention. These other responsibilities significantly included the government’s prior responsibility for having created official segregation and sustained quasi-official segregation. Of course, the social climate had substantially changed in the intervening period. In 1896, “the commingling of the races,” in Plessy’s terms, was viewed as a violation of the natural, if not divine, order of human nature. By 1954, it was seen as the ineluctable goal of social evolution. Yet in both periods, the active role of the government in creatively changing the status of race relations was never affirmed as a value in itself. Rather, in 1954, the government accepted its responsibility for undoing the previous intervention of government in race relations and for addressing the “socio-psychological harm” its prior suborning of segregation had helped (though not necessarily intentionally) to create. Justice Earl Warren’s appeal to the virtues of a “color-blind” society was an affirmation that society was changing—and had already changed—from the “color-conscious” society of Plessy. His opinion was not, however, an affirmation of government’s authority to do anything more than eliminate the color consciousness it had itself consciously institutionalized. Then, too, there was the imposing challenge of a world beginning to shrink under the force of rapidly expanding technology, coupled with an intense East–West Cold War competition. In some sense it was a global adaptation of the nation’s internal struggle; it was a competition for hearts, minds, and markets. Freedom, in general,

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and national liberation in particular, were items high on the international agenda, and the agenda could not be moved at all without discussing race, as most of the parties involved in this discussion were nonwhite nations. In retrospect, it is unimaginable that the United States could have competed effectively had it remained the racially oppressive and openly segregated society that existed was in the early 1950s.16 At the very least, government had to relinquish its support for legal segregation. Accordingly, by the 1930s the federal government in general began to move toward the position, which it has since been steadily refining, of legal race neutrality and non–government determined (or directed) public policy. Unfortunately, this move has been marred by the federal government’s weak, if not untenable, reliance on assumptions about responsibility for equity and distribution. Responsibility for the equitable distribution of public services, it is assumed, requires less—not more— government intervention once desegregation law is affirmed. At least in the context of American racial history, the assumption by the courts that government can delegate responsibility for social change to a resistant sector of society requires substantial explanation. The Brown court’s recourse to the equal-protection clause of the Fourteenth Amendment gave the public impression that equal protection of the laws necessitated the eradication of all distinctions based on race when, in fact, only those distinctions found in segregationist law were explicitly denounced. One could easily encapsulate the conceptual difference here by concluding that racial segregation and discrimination were deemed unconstitutional in 1954, while racial separation was not. Such a conclusion is, however, fairly meaningless for the time period and, in the public sector probably, for today as well, because racial separation was historically inconceivable without the reinforcement of law. No reputable jurist (except a black nationalist) would have tried to speculate before the courts on a hypothetical structure of race relations as “separationist” versus segregationist. In fact, such speculation might well have been deemed judicially inappropriate because racial separation as well as integration, per se, were beyond the reach of law. As a consequence, desegregation began to take form through the courts within the very narrow confines of removing the legal barriers while leaving open the ambiguous issues of racial interaction as if they were on the periphery. What could or should be done about the vestiges of segregation could scarcely be clarified without clarification of the field of race relations beyond the issue of segregation. In other words, what was beyond the barriers to desegregation was also beyond the range of conceptualization in the courts. In effect, the Supreme Court ruled that segregation and discrimination were illegal because they involved “authoritative” subjugation. In the absence of authority, therefore, racial prejudice, implying personal, sociopsychological, or ethnocentric bias, were beyond legal redress. The distance between these conditions may well involve the sociopsychological harm of which the court spoke, but the harm itself was not the subject of adjudication; it was, rather, the cause of the harm. Yet, by inculpating government behavior in a harmful relationship, the court cast a strong suspicion of unconstitutionality over all government-sanctioned and enforced unequal racial relations. As far as the actual content or substance of these relations

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were concerned, the court delegated authority to the school system as a public, but quasi-independent, entity and retained the authority to judge the equity of the school’s behavior. Accordingly, the court concluded its 1955 booster declaration in Brown II with a show of faith in the school’s ability to define race relations: School authorities have the primary responsibility to elucidating, assessing, and solving these [desegregation] problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Traditionally, equity has been characterized by a practical flexibility in shaping the remedies and by a facility for adjusting and reconciling public and private needs.17

The idea that quasi-private school authorities have primary responsibility for “shaping” the public interest in interracial equity indicates, at a minimum, that public authorities will be liberated from the need to promulgate specific criteria for racial equity. Instead, the interface between race and government was perceived in Brown as primarily, if not exclusively, accessible through policy implementation. The policy in this instance was presumed to be guided by “equity,” whereas race and race relations were the problems that needed to be forced into conformity with traditional and, by implication, nonracial models of equity. The problem for the courts was, and remains, that they cannot arrive at an operational definition of equitable race relations that improves on the one in Plessy. In fact, the courts cannot produce a concept of race as a politically relevant phenomenon but, rather, presume that race is essentially a genetic or physiological entity. The logic of this presupposition is that race relations are normally apolitical and socially irrelevant when they are good and socially and politically relevant only when they can be proven to be bad. In this regard, the Brown decision confirms the Plessy conclusion that law and the Fourteenth Amendment could not have as their objective “to abolish” distinction based upon color.” Now, over a hundred years later, the government accepts no responsibility for the damaging results of such a distinction. In its reference to the negative effects of “commingling of the two races,” Plessy indicated that the boundary condition for any political action (distinction) on race is simple (physical) interracial contact. Brown, in contrast, admits to a customary connection between race and sociopsychological factors in its reference to “the hearts and minds” of school children. The admission that feelings may normally accompany racial identification, however, does not involve a conceptual or principled statement about racial distinctions. It simply refers to the environmental conditions, meaning other inequalities, under which race relations may occur. The public policy legacy of this persistent physiological concept of race is evident in the numerous 1960s laws, particularly state laws, and policies dealing with “racial balance.” Similar to many physical objects, race relations have been submitted to the kind of weights-and-measures system typically used to distribute material goods. For example, the Massachusetts Racial Imbalance Law of 1965 affirms the quantifiability of the policy outcomes to be sought from improved race relations as follows:

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racial imbalance shall be deemed to exist when the percent of non-white students in any public school is in excess of fifty percent of the total number or students in such school.18

This law, like the Plessy ruling, reduces race relations to fractions of degrees of physical contact. Plessy, the plaintiff, was referred to as “one-eight negro”—a fraction with more influence than size but a fraction nonetheless. Race, therefore, was seen as an individualized characteristic, fully detachable from the whole. The Imbalance Law treats race relations as legally assessable only through numerical standards. In so doing, it focuses on the school building—meaning another social institution—but not on the school’s relevance to these relations. Yet, the policy treatment, as well as the targets of the treatment—the racial groups—are still treated as a collection of individuals. The chief value of the concept is its commitment to the precept of individualism, and the process surrounding it implies that each individual, and not the school or the society, is solely responsible for the racial distinction he or she brings to the school. The courts, consequently, have sought primarily to deal with the distribution of the distinctional and the frequency of its concentration on the supposition that race relations would somehow be favorably affected by its redistribution. Yet, the quality and content of most race relations, as we shall see, has generally escaped judicial attention. As a guiding principle for American public policy, therefore, Brown bequeathed conflicting messages to policy makers. Its reformist message was clearly that government must undo the legal foundation of the “racism” it had helped to propagate throughout society. It was unclear, however, what that racism might involve beyond segregation. As a result, the conflictual legacy of Plessy sublimated in the Brown decision was a serious problem of public policy. In substance, the subliminal legacy had two distinct components. First, race is simply physical at base; it is regrettably social but not, in essence, political. Second, ideal race relations are those that are free of government intervention. It took a while—about a generation—but this legacy finally resurfaced in the judicial process in the landmark Bakke case (1978).19 In the Bakke decision, the court asked the University of California Regents whether their school had been guilty of prior segregation or discrimination. Not surprisingly, the school authorities responded “no,” and the court effectively said, ‘that’s just fine, then you can leave race in its proper place—a place beyond your reach.’ The court added, however, that the school could involve race (e.g., the social factor) as long as it did not do so in the name of public or government authority. Race consciousness was, therefore, to be grounded either in public compensation for past sins of discrimination or in private initiative for private or social purposes. Similarly, the prescriptions for public policy provided by the court are threefold. First, ignore race itself to the extent that race is purely physical in nature. Second, redress the social inequalities involving race where they have governmental implications, but ignore these inequalities where they are apolitical. Third, remain indifferent to all inequality that may emerge without government intervention. Subsequently, conflict has emerged most strongly over the meaning of the relationship and the

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interpenetration of racial differentiation and social inequalities. For social inequalities in education, employment, and housing, policy makers, such as litigators, have argued that inequality among blacks and whites is as acceptable—if not as good—for blacks as it is for poor and wealthy whites. They have disagreed over the extent of racial bias for which the government might be held accountable and on which it might have a corrective effect. This disagreement has more to do with the power and potential of government than with its moral obligations. Most often, therefore, the results of litigation have been clearer where the reach of the social aspect is defined by past discriminatory experience to elicit direct public action. Absent a clear racespecific record in litigation, policy prescriptions have directed real implementation and real value choices to the private sectors while leaving the role of government in ambiguity. Here, for example, is the clear consistency between the Bakke and Weber (1979) cases. Bakke seemed to restrict race consciousness and to limit affirmative action, whereas the Weber decision seemed to promote both of them. Yet these cases share the common ground of attributing race-specific action and real policy implementation to the private sector alone. Higher education, almost as much as private industry, though publicly financed in the Bakke instance, has traditionally retained independent and privileged authority in the areas of admissions and scholarship evaluation, and the court’s recurrent reference to established and acceptable university practices in admissions helped to affirm that standard. The ambiguities remaining for policymakers concern both race and the social inequality that has historically and judicially been linked to it. Understandably, policymakers and legislators have focused on resolving the latter ambiguity—that of race-related social inequality. With a more philosophical bent than what is normally condoned in American political culture, the policymakers might have sought to return to the primary question of race itself to understand the linkage. Instead, they followed the path of pragmatic culture and sought to find and act on inequality without assessing its roots. Unfortunately, the primary focus on socially recognizable inequality is deceptive (at least as the court has presented it). It is deceptive because such inequality can only be recognized through its nonracial parameters. A situation is inequitable between blacks and whites only because it is inequitable among whites. In other words, it is socially unacceptable because the dominant society (whites) has experienced such a situation as being inequitable. At base, it is an epistemological deception, first because the policymaker assumes that any inequality to be addressed exists without regard to race. Second, and more profound, the standards for equality must be found among the established unequal relationships in white society. Third, the guidelines or criteria for rectifying an admitted racial inequality must not upset the customary relationships among whites. Ultimately, it is deceptive because the unconscious subject or focal point for judging inequality in the process of policy implementation becomes whites rather than blacks. In practice, the question of how this process of admissions or employment is unfair to African Americans is subliminally restructured. It becomes: How is or would this process be unfair to whites? The legislator or policymaker must then explain the concept of unfairness in universal language, meaning that the measure

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should be one that whites can accept on the basis of their own experience. If the explanation is bifurcated to allow for the possibility that blacks are so special or unique that no explanation across the races can uniformly apply to both races, then all public policy comes to a halt. Immediately, the issue is treated as one of private action beyond the public sphere because it is race specific. Race specificity has been effectively defined by Brown as being beyond the range of public action except as compensation—more procedural than substantive—for previous race specificity. After all, the goal of the modern courts has been to treat African Americans like everyone else. Therefore, a judicially recognized point of inequality between blacks and whites must ultimately be defined in terms of an inequality among whites, except in cases of compensation. Still, the notion of race-specific compensation leaves open a broad parameter of public action. It raises the primary ambiguity involving the physical concept of race to a public policy dilemma. The dilemma has been superficially confronted through statistical measures of racial parity and “equality” of results, as with school enrollment data. In large part, however, it has been evaded by once again refocusing policymaking on whites rather than on blacks. Theoretically, compensatory practices would address the sociopsychological harm that blacks have experienced. In practice, however, it is easier and more politically manageable to address the presumed instruments of harm. Accordingly, where educational discrimination has harmed black students, one can focus on the harm or on the discriminatory structures. For schools, the courts and policy makers have, therefore, focused on the administration of schools and its redistribution of students, rather than on the substantive educational harm and corresponding pedagogical remedies. The practical policy effect is thus to look first at what education administration is among whites and then seek to bring blacks under the same form of administration. The object of education policy, then, whether it is vouchers or special admission, is to prevent African Americans from having a race-specific education. At first glance, this might appear to be a race-neutral approach, but only if one assumes that behind the long-segregated white school door, nothing specifically “white” (meaning culturally determined) was done. In fact, such a presupposition is consistent with the concept of race as aa physical condition only. Moreover, it is conducive to measuring disadvantage for blacks as their degree of distance from the institutional environment of whites. As we shall see shortly, affirmative programs are frequently no less of an affirmation of the virtues of traditionally white institutions and practices. First, a look at the race-related concepts in these traditions should be useful. CONSTITUTIONAL LAW AND RACE SPECIFICITY A perusal of federal laws on racial issues will show either that blacks as a racial group have not been a subject of legal issues or that they constitute such a sensitive issue that any reference to them is virtually taboo. Beginning with the Constitution, virtually all legislative references to African American status or issues fail to mention them directly in their legal prescriptions. At most, a direct reference may occur as an example of a problem but not as a primary component of the problem. Even more

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scarce in terms of legal prescription (no exceptions are evident)—and more clearly taboo—is direct reference to “whites.” It is as if the American individualistic tradition prohibits direct legislative statements for or about a racial group even though the intent of the legislation’s initiators may be clearly race specific. There is, perhaps, a tradition of self-deception here, a special kind of “moral dilemma,” in Gunnar Myrdal’s term.20 In some sense, racially specific language may be difficult to reconcile with the broad constitutional applications often anticipated in civil rights. Law and regulation work most effectively when their objects are defined by legal/illegal behavior (e.g., discriminatory housing sales) rather than by the description of its normal subjects. Whatever the legal writing constraints on identifying African Americans directly, there is a political constraint at least as a determinant. It involves the cultural predilection to attribute legislative authority, sanction, or benefits only to individuals who, by definition, are individually and uniformly responsible before the law. This cultural predilection shows itself in the nation’s origin, when the Declaration of Independence linked “life, liberty and the pursuit of happiness.” Only individuals can hold and exercise liberty, and only individuals may pursue happiness as it was then understood. That understanding was indisputably translated by John Locke, who argued for life, liberty, and “property.”21 In a capitalist society only individuals (or private collections of them) can hold property for capitalistic purposes. The conceptual constraint this cultural norm poses for racial awareness is evident in the Constitution’s indirect reference to the conditions of African Americans. The most important of these is “the three-fifths” compromise, which permits electoral representation of slave holders on a numerical basis by counting each slave they owned as three-fifths of a person. An understandable but unfortunate misinterpretation of the clause is that it is often thought to “define” African Americans as threefifths of a person. On the contrary, the clause is only marginally relevant to African Americans in its intent, though it is significant in its effect. It decrees: Representative and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons.22

Although relevant to African Americans, the clause primarily defines inegalitarian relationship among whites in the electoral structure. In fact, its principal relevance to African Americans depends on the proposition of inequality among whites in the representative process. Namely, (some form) of property determines a voter’s importance in the selection of representatives. Here, the critical distinction between whites as property holders and the poor is clarified by the reference to indentured servants. There can be no doubt that being white has a Constitutional value in itself. Of course, the prior conflicts between North and South may have necessitated a special deference to plantation property values to stabilize the union. What that historical link says about races and the state should not be overlooked. At a minimum,

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it indicated that the sublimation of racial identification was consistent with other national, political, and economic compromises. The ability to specify black and white was contingent on the nation’s ability to confront the divisive concepts of property rights among whites, and for better or worse, that confrontation was postponed until the Civil War. Along with that confrontation came a fleeting but unavoidable consciousness of race and political structure. Race and racism, however once more escaped explication in the law. The Reconstruction Amendments to the Constitution, the Thirteenth, Fourteenth, and Fiftteenth, recognized the complicitous role of American law in controlling racial inequality, yet the law was presented as the cure, the savior from an illconceived social system that was being reined in by the rational force of law. The greater race consciousness emerged with the end of Reconstruction through the Compromise of 1877 and the reinstitutionalization of legally supported racism. In this compromise, the North came to terms with the South on ending its military occupation and on electing the next president.23 More significant, they came to terms with the role of race in national politics. Henceforth, racial issues were to be excluded from interparty politics. By excluding black concerns and black party officials from Northern support, both parties effectively labeled racial issues as too ideologically disruptive to conform to the developing two-party system—a system heavily dependent on fundamental ideological consensus. The early voting rights successes against the most blatant discriminatory practices illustrate a desire to escape from race consciousness. The fight against the “grandfather clause,” manifested in Guinn v. U.S. (1915), appears to show commitment to African Americans who had been denied the franchise on the bogus criterion that their grandfather had not voted (during slavery).24 Given the host of existing and developing discriminatory tactics at the time, the rejection of the clause is more directly attributable to the blatancy of its racial component than to the quality of racial bias. The poll tax and the literacy test, for example, persisted with legal protection for another fifty years. What was blatantly racial about this clause may be called “individual racism.” Individual racism explicitly specifies a racial group for adverse treatment. The grandfather clause did that and more. It not only singled out blacks but it singled out whites. It specified being white in almost explicit terms as a basis for the right to vote. It was this latter race consciousness—the consciousness of being white—that was particularly repulsive to a judicial system accustomed to universalistic concepts. The denial of rights to blacks would thus have to hinge on some “individualistic” failure or deficiency of blacks and not on the narrow race-based privileges of whites because, in part, it insulted whites. To institutionalize racism, it was necessary to deinstitutionalize race. To make racism legally and politically viable, race itself became a legal and political nonentity. In a related manner, Derek Bell observes of the Fourteenth Amendment’s equal protection clauses that protection of rights is individualistic: The guarantees of the Fourteenth Amendment extend to all persons. . . . The guarantee of equal protection cannot mean one thing when applied to one individual and something different else when applied to a person of a different color.25

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Accordingly, the assumption of individual equality of rights among whites may well have required that any racially directed denial of rights be couched in individualistic dogma. In particular, equal protection of the laws was conceived as applying only to individuals (and incorporation of individuals) and not to racial groups. THE PHYSICAL AND SOCIAL CHARACTER OF RACE The great contribution of the Brown case to the analysis of race in law was its groundbreaking recognition that racial inequality was socially and politically determined. By using sociopsychological data in the formulation of its ruling, the court effectively recognized that equal protection had relevance beyond the individual. In this and in subsequent civil right cases (e.g., Hobson v. Hansen [1967]), the courts recognized that the pursuit of equity through public action required a recognition of the social and racial network in which people live.26 In so doing, it made an important adjustment to the individualistic ethic by admitting that individuals did not have to be individually oppressed for inequality to exist. The courts did not, however, admit that government could be responsible for this holistic nonindividualistic repression. An outstanding example is the court’s interpretation of Kenneth Clark’s data in the “black dolls” experiment cited in Brown. The experimental findings show that black elementary school girls, like the white ones, had a preference for white dolls. The conclusion was that such a preference by blacks indicates a negative self-image, presumably promoted by segregation. The kind of legal redress that the court deemed appropriate indicates more of a social than political conception of race relations: Schools were told to desegregate, but the implementation of that order was to be as private and remote from federal governance as possible. No public accounting for the psychological remediation of these or any little black girls was ever planned. Although the states controlled, the desegregation policy was effectively nonpublic or quasi-private in implementation. A more public and politically accountable interpretation of the findings would have called for race-conscious redistribution of educational authority (e.g., community control). Obviously, such a decision would have raised questions about equal protection, but it would still have been more consistent with the historical government role in education. That role has been historically focused on the administration and financing of education and not on its substance or pedagogy. In fact, the unwillingness of the federal government to follow its school desegregation orders to the point of educational effect may have led to the crisis over busing in the 1970s and to the turn against busing in the 1980s. Perhaps, more to the point of showing the private solution standard in the court’s approach, it produced no procedures determining how or whether the self-esteem of those black girls or any others would be affected by its desegregation order. The same issue emerged in a vastly transformed political context at the end of 1990, when a Department of Education official, Michael Williams, asserted that “minority-only” scholarships would be deemed in violation of the law by the department. In seeking to mitigate the maelstrom of protest that ensued, President Bush had the department reinterpret its declaration to permit “privately funded” minority scholarships. Since the justification for the original order was the presumption of

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(reverse) discrimination, apparently private discrimination was not considered a governmental concern. Right or wrong in its legal interpretation, the Bush administration evidently saw nothing in civil rights law that required governmental responsibility for racial inequality per se. Before the Williams order, no public effort was made to ensure that progress toward racial equality with whites for black was being made by this administration. Under the order, the whole question of racial inequality was removed a step further from public scrutiny. The only remaining public obligation for scholarship aid claimed by the administration involved the assurance of “merit” standards with some deference to financial need. Merit, like financial status, of course, has long been approached as an individual attribute in our individualistic tradition. A brief contrast of the affirmative action cases of the 1970s, 1980s, and late 1990s can illustrate the artificial distinction made between merit-based policies and racespecific policies. In the Bakke case, the claim of reverse discrimination was upheld, in large part, because Allen Bakke had received higher standardized test and school-generated scores than some minority students in the University of California–Davis Medical School Special Admission Program. Almost forgotten in the ensuing public debate was the fact that both parties to the case had stipulated before the California Supreme Court that Bakke’s merit was not to be disputed. In other words, an essential conflict between race and merit could be assumed to exist and yet be beyond governmental concern. If, for example, there had been demonstrable cultural bias in the testing or other scores, the courts would have had to ignore it. Race and merit were to be treated as politically external and, in this case, competing quasi-social and physical entities. Only the consciousness or awareness of race in school policy was subject to adjudication. That active consciousness would have to be assuaged by the guilt of prior discrimination or justified by some social and educational interest that could pass muster as a “compelling state interest.” Race consciousness in this case replaced discrimination as the link of race to normal social and political function. If race and merit were to be treated as socially and politically determined qualities, then they could obviously overlap. No longer could the cross-racial neutrality of tests generated without regard to blacks be taken for granted. Merit, individualistically treated through the early stipulation before the court, became the social goal. The affirmation of that goal—really a private standard—became the object of judicial intervention. Race consciousness would thus be judged as consistent or inconsistent with that goal. Race consciousness became the politically relevant aspect of race relations and not racial inequality. Unfortunately, there was no judgment on merit consciousness. In effect, the application of the equal protection clause was directed toward maintaining the artificial dichotomy between race and merit. It is artificial because it was never examined by the litigants. Instead, the social neutrality of races was presupposed. Among other things, the sanctity of merit standards from race relations could only be questioned by risking the overall sanctity of merit. If admissions standards for blacks lose their objective image, then the question of inequality in judgments among whites is immediate. Only a race-specific standard for public policy that takes

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into account broad areas of social distribution would not also disrupt public policy for whites. COMPENSATION AND DISADVANTAGE When affirmative action was first formally proposed in 1965 by President Lyndon Johnson (Executive Order 11246), the potential for a race-specific interpretation was there in the suggested adherence to goals for racial inclusion. Instead, the media emphasis on compensation for past discrimination became more prominent, except where goals were the focus of attack. The focus of compensatory racial policy inevitably turns to prevailing standards among white Americans. Of course, for such standards no one wants to be race specific. That would require specifying, in historical terms, the characteristics of social conditions attributable to interracial exploitation. To pursue this line of analysis would, in turn, provide grounds for socially disruptive claims on much of the acquired individual property among whites. Again, the constitutionally sanctioned integrity of private property over group rights for African Americans (or any other group for that matter) has never been repudiated. Only individual rights have standing before the courts. Accordingly, the dilemma of collective group deprivation, and claims for African Americans, remain unresolved and have fallen deeper into disfavor, in terms of both remedial public policy and legal decisionmaking.27 A society without popular myths is a society on the verge of civil war, or so it seems with our myths about race relations. One of the more popular myths, clinging tenaciously to American political life, without a shred of intellectual backing, concerns historical compensation. It is encapsulated in the statement that “we and our property have nothing to do with the racism and exploitation of our grandparents.” Yet, little more than two normal lifetimes ago, this was a slave society, and only 52 years ago, segregation was the law of the land. Quite obviously, employment conditions such as old-boy’s networks would not be old if they did not go that far back, yet these are the defining characteristics of institutional racism.28 It is a realistic function of majority political power that white beneficiaries of historical inequality have not been held legally responsible for the full material amount of their benefit. As a consequence, the courts have turned to looking at “disparate treatment” instead of compensation. More precisely, the courts were once willing to consider, as evidence of continuing discrimination, cases showing that employers’ practices had a “disparate impact” on minorities. The Supreme Court’s rejection of employee testing that shows a statistically large bias against African Americans in terms of results was a step toward legitimating the racial group as politically and legally recognized (Griggs).29 The focus on impact, however, proved to demand too much of a focus on African Americans. As a consequence, the court’s recourse to solve disparate treatment was more consistent with society’s aversion to race specificity. The race focus is still present, but now the primary subjects are whites: It is a focus that looks at blacks only to ask how they may not be treated like whites. Of course, other social factors work against judicial reliance on impact standards, as illustrated in earlier voting rights cases, where the issue was between “intent”

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versus statistically demonstrable impact. In the Bolden case (1980), the plaintiff wanted at-large elections declared in violation of the Voting Rights Act. The system of at-large elections for city council, it was argued, effectively prevented blacks from winning elected office.30 Evidently, the court felt that the individual prejudices of white voters against black candidates were perfectly consistent with equal protection as long as they were not implemented or mobilized by public authority. To be found in violation, therefore, one must show that the voting procedure was primarily and originally intended by public authorities to discriminate. The fact that many such procedures have their origin in the post-Reconstruction backlash against blacks has yet to have its full judicial recognition. Intent standards, like disparate treatment standards, return whites to center stage, if only unconsciously. Ironically, intent standards should owe something to the precedent-setting use of sociopsychological data in the 1954 Brown decision. Still, such data, along with most evidence of intent, are virtually impossible to mount before the courts in the absence of name-calling, Klan-like bigotry. Disparate treatment places the normal treatment of whites in the position of an ideal standard. If the admission standard or employment practice is fair to whites, as individuals, then it is presumed to be fair to all blacks. If, for example, the employment test does not draw on some group characteristics of white applicants (e.g., recite the pledge of the White Citizen’s Council), then it is legitimate for blacks as well. Hence, a test that discriminates among whites is good for both blacks and whites, it is assumed. One of the problems here for African Americans is that even minor inequalities among whites may turn into gross inequalities for African Americans and still go unnoticed. There is really no way to tell because the primary standard or yardstick of bias remains within the definitional control of white society. Accordingly, the Supreme Court ruling in Wards Cove requires plaintiffs against discriminatory practices to prove that the practices were directed against them as an outside group.31 In other words, blacks are required to give evidence of how whites perceive themselves as an inclusive racial group to prove that they are being exclusive. That naively assumes that white racism depends on white race self-consciousness. LEGISLATIVE LANGUAGE AND RACE As the preceding observation of the court’s interpretation of race as a subject of law should have suggested, race has unclear standing in American law. In the host of federal and state civil and voting rights laws, blacks are mentioned primarily as examples of the range of enforcement subjects. Most frequently, race is a negative example, as in the statement “without regard to race, creed or national origin.” Occasionally, it becomes the measure of effective policy implementation. Where racial parity is sought and where affirmative action goals are used, race has ambiguous standing. In these cases, for instance, school busing, racial group distribution appears to be the primary object of the legislation when, in fact, it is not. The legislation is always concerned with rights and the equitable protection of them. To ensure that education policy, for example, complies with nonracial equal protection, a race-focused parameter is applied by

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law. Similarly, with affirmative action goals, the real object of policy is the compensation for or removal of racial bias from the public sector. Race-focused interests have themselves been the primary object of legislation, but then those interests are always distilled or disguised to emphasize their most universal component. For example, Title II of the Higher Education Act of 1965 was clearly intended by its authors to channel federal subsidies to traditionally black colleges and universities. Yet Title II was named the “Developing Institutions” act to give the impression to the uninformed that any new struggling college would be eligible for such subsidies. In fact, since the end of the 1970s, the vast majority of benefiting institutions have been traditionally white ones.32 The disguise was a concession to anti-race-conscious political sentiment, rather than to legal constraints. Virtually all the congressional supporters knew what the act intended; they simply did not want to commit themselves to it in principle.33 The colors of their real sentiment were later shown when the benefits were redirected to two-year white colleges and newer fouryear colleges. In this regard, William Julius Wilson, an advocate of the thesis that racial differences are dissolving into class differences, makes a questionable assumption by arguing that social welfare policies should always be “race-neutral.” After all, Americans across racial and class lines continue to be concerned about unemployment and job security, declining real wages, escalating medical costs, the sharp decline in the quality of public education . . . crime and drug trafficking in their neighborhoods.34

There is both a perceptual fallacy and a fundamental flaw in the reasoning of some policymakers and jurists who are obsessed with the need for “race-neutral” legal and policy solutions. Absent all tangible racial barriers, American society does not have either the social and political history or the kind of redistributive economic system that would allow such policies to be efficacious, despite the best intentions and determined efforts of those putting them into effect. Continued insistence on applying such policies can only mean that a large number of people who were systematically deprived over many years would have to retain their positions at the bottom of the socioeconomic hierarchy. The recognition that there is a socioeconomic hierarchy that would persist without regard to race is widespread, but only a minority of justices has recognized the historical racial components of the national socioeconomic structure. A policy orientation, shaped by that recognition, seems to have informed the words of Supreme Court Justice Blackmun, who in Bakke said, In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, We must treat them differently. We cannot—we dare not—let the Equal Protection Clause perpetuate racial supremacy.35

Although the statement exudes the kind of liberal humanism for which it is commonly cited, it also applies to the “nondiscriminatory” racial status quo. It implies a

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permeating effect of past racism on current standards of “fair treatment.” Even more to the point, the words of Justice Brennan refer to standards when he insists: “[C]laims 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.”36 Nothing in American law and public policy is, or ever has been, so race-specific that it is not also of interest to white Americans. In the rare cases in which racespecific intentions have penetrated public authority, the language of the law (e.g., the Fourteenth Amendment) has been manipulated to include white American interest.37 Where policies have been developed around black political issues, the goals and the structure of program implementation respond to white American interests. Affirmative action has not been judicially construed to apply where whites, as a group, are disadvantaged, but only where whites appear to have “too much” advantage. Full-employment policies, for example, could only exist without regard to race, although African Americans are clearly in need of such policies. Conversely, if blacks were the originators and the primary focus of full-employment policies, the language and structure of the resulting programs would inevitably be as race-neutral as possible.38 Historically, one can never expect race-focused black politics to eventuate in race-specific legislation. Just as the equal protection clause is indebted to black politics, many social welfare programs have their origins in race-conscious initiatives. THE NEUTRALIZING TENDENCY OF POLICY FORMULATION Prominent among the surviving, though barely, race-focused programs are minority set-asides. Clearly affirmed by the Supreme Court in 1980 as a form of compensation, they have since been the constant target of hostile political and economic conservatives.39 Almost immediately, these programs were expanded to include a variety of minority groups and women for whom the same kind of past discrimination would not be claimed. The speed with which other groups were included suggests the shortness of the lifespan of race focus in the public arena. More important, these setasides structured black participation as peripheral to a white-dominated economic center. More precisely, they provide for the satellite dependence of small minority contractors on more successful contractors in the principal roles. In the 1989 Croson case, the Supreme Court’s rejection of set-asides as reverse discrimination demonstrates the elasticity of race specificity (to the extent it is present).40 The evidence in this case showed that African Americans and other minorities continued to be grossly underrepresented in city contracting in Richmond, Virginia but that their underrepresentation was no longer the central issue. Rather, the white plaintiff argued that he was victimized because he had followed the rules, while the set-aside contractors had had every chance and failed to meet the initial requirements. These requirements were set up to meet the city’s contractual needs as guided by its assessment of the marketplace. In essence, therefore, set-asides were expected to help minorities accommodate the market place. In the end, which interest was primary? The success of the reverse discrimination claim indicates that the maintenance of the white-dominated economic center was the ideal to which blacks were expected, with help, to adjust. If, as conceived by Congressman Parren Mitchell, it

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was the black business that counted most in the policy implementation, it became just business. The retreat from race specificity would be largely completed if it were not for the continued public subsidy of traditionally black colleges and universities. Where, for example, set-aside programs have survived, they have done so only by diversifying their focus to include women or Hispanics and other minority groups. Even here, the subsidies are justified as historical compensation rather than as race-specific policy. Yet they are commonly thought of in the latter frame of reference. The long series of court cases initiated in 1973 by the NAACP Legal Defense Fund against Southern states’ dual systems, the Adams cases,41 were not able to confront the central issues: Should government policies ever be race-specific? Rather, they argued, in effect, that society is race conscious and divided and that government must take cognizance of these conditions while pursuing racial equity. Of course, the pursuit of racial equity without clear race specificity leads to a narrow approach to desegregation. Public colleges in the South, both black ones and white ones, were accordingly subjected to a series of desegregation orders under the guidance of the Fifth District Court. By 1987, when the litigation was temporarily terminated and followed by the Fordice case, most public black institutions still existed, but all were insistent on their complete interracial openness. Ironically, none of the black colleges had ever been guilty of segregating.42 Segregation, like discrimination, requires that the responsible actor have authority to exclude. Authority within these colleges applied almost exclusively to their educational and administrative content. Authority to exclude people on any nonacademic bases was always lodged with the white-controlled state boards. Thus, the reform of behavior intended had more to do with white officials than black educators. Yet, the greatest tangible effect was on the black educators whose schools were threatened with possible extinction. The survival of black institutions should have brought to the surface of education policy and the legal arena the question of racial separation without segregation. After all, these black schools and their students cling firmly to their independence. Still, the question has never been more than peripheral to debate in policymaking and judicial arenas. Instead, the states have initiated institutional programs to redistribute students by race in response to the court mandates. Only a recourse to upholding educational traditions and respecting the special socioeconomic needs of students has preserved the black public institutions. Given the judicial interpretations of equal protection since 1954, it is clear that the courts cannot endorse the public creation of racially separate institutions. Nor can any institution be publicly subsidized where the subsidy serves, in the context of racial separation, to sustain a racial disadvantage. Still, a question remains about mutually acceptable and privately subsidized separation, in which substantive access to resources such as schooling is equally available interracially. This question may be as much concerned with conceptualization as with policy. What is racially separate depends on the definition of race. Schools may select their programs, their scholarly orientation, and social support systems to appeal to students with specific interests. In the private sector, traditionally black schools do just

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that. The impression then that they are racially exclusive is less probable of the “social” interests that the schools exist to propagate. The “physical” characteristics of the students in this case appear to be more coincidental. The tendency of the legal arena to treat race in purely physiological terms generates a greater ambiguity about separation. If one returns to the Brown case’s reference to protecting “the hearts and the minds” of students, the possibility of getting beyond the physiological surface is apparent. Still, the court does not fully take that step. It simply recognizes the possibility, and the tendency, for this defective behavior in segregationists in the past. The continuing possibility remains, however, embedded in the kind of race specificity in the sentiment expressed by the court. This perspective, though not consistent, identifies race as an ephemeral social entity. In this concept, the physical substratum is strong enough to elicit a physical, and even numerical, interpretation of desegregation wherever equal protection is affirmed. Yet the response to “simple” racial separation should be guided by a concern for the sociopsychological and cultural significance of race relations. In this perspective, a black college may be a vestige of segregation as a physical entity but a bulwark against it as a social and cultural entity. Accordingly, one would have to weigh the value of both aspects before attempting to destroy or transform these institutions. Concomitantly, one could no longer feel that physical desegregation serves the spirit of Brown, where a separate black cultural or social creation had emerged out of the segregated conditions. Second, the social perspective on race also focuses directly on African Americans. The vast majority of desegregation cases, it has been argued, have really focused on whites in terms of primary concepts. In contrast, the popular reaction to the Adams v. Richardson43 and later Fordice v. U.S.44 litigation elevates African Americans to a social and cultural entity with a life and desire for “liberties” of their own. As important, the desire to preserve black institutions has begun to raise consciousness of race as a legitimate political entity. In other words, society is not only composed of black and white individuals subject to governmental redistribution but is also composed of social–racial groups that determine the character and life chances of their constituent individuals. Government cannot act on all collections of individuals because race (among other social factors) makes the individual politically inaccessible, if not insignificant, when race is the subject of policy. In some historical sense, the legitimated individual attributes have been effectively defined in American law and politics as “white” or, rather, as the commonly recognized attributes of individuals in the dominant society. Since the three-fifths compromise, the sanctity of the individual as a property holder and political actor has been tied to the denial of the racial and social foundations of that property. When political demands involving voting rights and civil rights have succeeded in court, it has been largely through the insinuation of a number of black individuals into patterns of behavior primarily characteristic of white Americans. The rise of the black middle class is as much a result of the constraints of civil rights as it is a product of its success. Some critics want to blame middle-class blacks as well as civil rights leaders for not paying enough attention to the needs of the mass of blacks. Although these

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individuals could be deserving of some blame, the specific social objectives, meaning patterns of upward mobility, available to civil rights leaders were circumscribed by established social and political patterns in white society. Even where blacks are concerned, public policy should always be expected to resist disruption of white society. Admitting a few more individuals into an individualistic and unequal system is far less disruptive than demanding that a subset of equality among blacks be created. After all, that demand would require race consciousness, and true race consciousness means race specificity. CONCLUSIONS: FEAR OF BEING WHITE AND LATENT RACE SPECIFICITY The majority of men resent and always have resented the idea of equality with most of their fellow men. This has had physical, economic and cultural reasons . . . especially I presume the cultural and spiritual desires to be one’s self without interference from others; to enjoy the anarchy of the spirit which is inevitably the goal of all consciousness.45

Embodied in the ideal self-concept of the true individual is an unconfined and unattached, if not anarchic, ego that abhors self-categorization and group identification. Prime among the group pressures to be resented is the pressure to concede to racial identification. The truly naive individualist resents any other race with which regular interaction compels self-doubts and reflection on personal independence or social interdependence. The typical American individual resents the race consciousness of all others because it compels a consciousness of his or her own racial confines. Close encounters with racial differences forces awareness of the social interdependence entailed in one’s own racial identity. In brief, many conservative white Americans, as individuals, resent and always have resented black race consciousness because it forces them to admit that they are white, that their attainments are tied to their race and not just to themselves. American public policy and lawmakers have always been concerned with race, but they have always been afraid to address it directly. Beginning with the political sensitivity surrounding the constitutional issue of white people’s (slave) property, no one could confront it directly without destabilizing the fragile union between North and South. In the end, the differing nature of property between North and South draws attention to group differences among whites and to the social, rather private, basis of property. The resistance to affirmative action has as much in common with these early concerns for property rights and social stability as it does with the 1960s civil rights reaction. Concessions to modern civil rights demands were conceptually fairly easy to make, first because they conform to the ideas of individualism and nonracial universalism and, second, of course, because the structure and control of property was left untouched. In this regard, the major political difference between the constitutional issue and the affirmative action debates is that the menace of instability is more visibly interracial in the latter case.

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Whatever the factual basis may be, claims of reverse discrimination are to some degree heightened by the sense that other individual attainments were not really personal but social (also racial). Resistance to race-conscious policies is an early expression of fear that greater inequalities (or differentiation) among whites are forthcoming. In a sense, it is a fear of being white, and it is a desire to be a better self creation than others who were also created white. Whenever a public agency has been challenged on the racial content of policies, its response has tended to be race specific, but the direction of that the specificity has been disguised. When the issue of special treatment or discriminatory treatment of blacks has emerged, officials have sought a universal standard for comparison. If the redress proposed involves a simple civil rights extension or retrenchment from affirmative action, then the resolution has an individualistic character. Behind the standard guiding decisions has always been a fairly uncritical acceptance of the characteristic patterns of behavior in mainstream (white) society. Although concerned with the black community, the unconscious focus of race-specific politics has been the white community. Ultimately, the resistance to race specificity in American law and public policy is grounded in an unwillingness to reexamine patterns of distribution on the basis of fundamental principles of merit rather than established practice. Such a reexamination would expose multiple levels of unequal distribution to public scrutiny. However sociologically legitimate they may be, standard institutional practices in education and business have virtually never been exposed to public debate since the 1950s. As a consequence, there is an unwillingness to confront, all in one sweep, the diverse ground rules on which American inequalities in attainment and wealth are justified. In sum, it is a fear of confronting the intricacies of inequality in mainstream American society. NOTES 1. Material wealth, some notable advancement, and benefits have been realized by the still-marginal black middle class, but there is no reliable measure (or index) of opportunity, life chances, or quality of life in America that shows the masses of black Americans even approaching the present reality or future prospects of white life chances in America. See U.S. Bureau of the Census, Statistical Abstracts of the U.S. (Washington, DC: GPO, 1995). Abstracts cover the full range of socioeconomic factors that affect the life chances of Americans: education, employment, income, housing, health, ownership, and so on. Cf. Claudette E. Bennett, selected tables from “The Black Population in the United States: March, 1994 and 1993,” U.S. Department of Commerce, Economics and Statistics Administration, U.S. Bureau of Census (Washington, DC: GPO, 2000). 2. The Thernstroms (and others) would of course disagree, but the fact that they themselves were never “outsiders,” in our opinion, both limits their perspective and also raises some concerns about the objectivity of the perspective that they labor so hard to substantiate. This statement is not meant to imply they cannot research or present well-reasoned findings regarding the conundrum of race in America. Rather, it is intended to call attention to the fact—repeatedly sustained—that there continues to be a wide disparity between the perceptions of blacks and those of whites regarding

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4.

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the black condition in America. Cf. Stephan and Abigail Thernstrom, America in Black and White: One Nation Indivisible (New York: Simon and Schuster, 1997); Gary T. Marx, Protest and Prejudice: A Study of Belief in Black America (New York: Harper, 1967); Lee Sigelman and Susan Welch, Black Americans’ Views of Racial Inequality (New York: Cambridge University Press, 1991); Donald R. Kinder and Lynn M. Sanders, Divided By Color: Racial Politics and Democratic Ideals (American Politics and Political Economy) (Chicago: University of Chicago Press, 1996); Robert C. Smith and Richard Seltzer, Contemporary Controversies and the American Racial Divide (Lanham: Rowman and Littlefield, 2000). These and other studies indicate that it is probably a near unforgivable mistake on the part of either professional academicians or lay observers to reduce the black condition in America to a mistaken or faulty perceptual difference between the present-day fates of the races. On the face of what can be empirically documented, and what hard data from census reports tell us, it becomes, at some point, both intellectually disingenuous and an assault on common sense to suggest that the grossly disparate deprivation and suffering of black people in America is somehow more perceptual than real. This, at bottom, and at best, is the distorted manifestation of a psychological dilemma rooted in white guilt. Any conclusion other than, “they only think it’s like that,” means that someone other than blacks themselves must be responsible. And who might that be? This is consistent with what was conveyed by Chief Justice Miller in Plessy (1896) when he concluded that, if there was any problem with legal segregation, it was not the scheme itself, and existed only “in the mind of the Negro.” Time, resources, creativity, and the energy of reasonable people would be far better spent in an effort to figure out how to reduce, and ultimately eliminate, the racially based systemic misery that race privilege, greed, and racial chauvinism has historically inflicted upon black Americans, rather than striving to prove that blacks, as a group, suffer from some form of cognitive or perceptual flaw—or simply have an enlarged imagination. The issue that lies at the heart of current civil rights litigation, and that has recently found its way into public debate via the reparations discussion, is whether the government should accept any responsibility for the damaging vestiges of slavery and government-sanctioned racial discrimination. A number of avoidance-minded skeptics and critics of reparations believe that even an “official apology” (for slavery), such as was suggested by former President Clinton in a June 17, 1997, speech, might place the government on a slippery slope, leading ultimately to the engagement of the government in a serious dialogue regarding the demand for payment of reparations. U.S. Representative John Conyers has introduced a series of reparations bills going back to the 101st Congress (1989). The last of these, H.R. 40, introduced in the 107th Congress, would, if ever approved, probably be a step in the right direction. This bill would establish a commission to study the issue of reparations, which would be an improvement over the often foolish and comically distorted rhetoric that generally centers on some form of individual payment to blacks. Dred Scott v. Sanford, 60 U.S. (How.) 393 (1857) in Derrick Bell, Race, Racism and American Law (Boston: Little, Brown, 1973), 2–22. Supra at 4. Supra at 6. Supra; emphasis original. Supra at 10–11. Infra, Note 1, at 1.

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11. In the area of higher education alone, see, for example, Bakke v. Regents of the University of California, 555 P. 2d 1152 (1976); Defunis v. Odegard, 416 U. S. 312 (1974); Podbersky v. Kirwan, 38 F. 3d 147 (1994); Hopwood v. State of Texas, 78 F. 3d 932 (1996); Gratz v. Bollinger, 122 F. Supp. 2d 811. 12. For the discussion of this, see Lani Guinier, The Tyranny of the Majority: Fundamental Fairness in Representative Democracy (New York: Free Press, 1994). 13. Shaw v. Reno, 509 U.S. 630; 113 S. Ct. 2816; 125 L. Ed. 2d 511 (1993). 14. Ibid. 15. See Sheila Jackson Lee (with Donn G. Davis), “History’s Bad Intent, Today’s Just Result,” Texas Journal of Women and Law, University of Texas School of Law May (1996). 16. The subject of race and the international competition that took place during the Cold War has escaped major academic examination as a topic unto itself. There is, however, scattered mention of the subject in works on and about a number of individuals who were prominent during the period. These include: Paul Robeson, W. E. B. Du Bois, William Patterson, Henry Winston, James Baldwin, Robert Williams, and Martin Luther King Jr., to name only a few. 17. Brown v. Board of Education of Topeka, Kansas, 349 U.S.294 (1995). See Joseph Tussman, ed., The Supreme Court on Racial Discrimination (New York: Oxford University Press, 1963), 45. 18. Massachusetts General Laws, Ch. 71 (1965) No. 37 D. See Norman Dorsen, Discrimination and Civil Rights (Boston: Little, Brown, 1969). 19. Regents of the University of California v. Bakke, 438 U.S.265 (1978) 20. Gunna Myrdal, An American Dilemma (New York: Harper and Row, 1944) 21. John A. Moore and Robert Myron, The Pursuit of Happiness, 3rd ed. (New York: McMillan, 1985), 47. 22. U.S. Constitution, Article I, Section II. 23. John Hope Franklin, From Slavery to Freedom, 3rd ed. (New York: Vintage Books, 1969), 324–32. See also Lorenzo Morris, ed., The Social and Political Implications of the 1984 Jesse Jackson Presidential Campaign (New York: Praeger, 1990), chap. 4. 24. Guinn v. United States, 238 U.S. 347,(1915). See U.S. Commission on Civil Rights, Political Participation (Washington, DC: GPO, 1968), i. 25. Derek Bell, Civil Rights—Leading Cases (Boston: Little, Brown, 1980), 433 26. Cases examining the racial effect of homogenous grouping (tracking) have indicated that individual attainment cannot be fully measured without substantial reference to the social context at several levels. In Hobson v. Hansen, 269 F. Supp. 401 (D.D.C. 1967), Judge J. Skelley Wright concluded: “Racially and socially homogenous schools damage the minds and spirit of all who attend them.” 27. Socioeconomically, there has been a pronounced and callous political retreat from social welfare programs (as demonstrated by federal welfare reform), and legal decision-making has continued the sharp right turn made by it (beginning in the 1970s) in the direction of heightened “strict scrutiny” and “narrowly tailored” remedies in discrimination lawsuits. See, for example, Wygant v. Jackson Board Education, 4756 U.S. 451 (1972); and Richmond v. J.A. Croson Company, 488 U.S. 469 (1989). See also, Infra at 28. Marguerite Barnett and James Hefiner, Public Policy for the Black Community (New York: Alfred, 1976), 7. 29. Griggs v. Duke Power Co., 401 U. S. 424 (1971). Derrick A. Bell, Race, Racism and American Law (Boston: Little, Brown, 1973), 759.

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30. Mobile v. Bolden, 446 S. Ct 55 (1980), http://supreme.justia.com/us/446/55. 31. Wards Cove v. Atonio, 109 S. Ct 2115 (1989); Michael W. Sculink, “Key Court Cases,” Employment Relations Today (Autumn 1989): 238. 32. William A. Blakey, “Agenda for Excellence and Equity in Black Colleges and Universities,” One-Third of a Nation Task Force Conference, Howard University (November 1989): 13. 33. Lorenzo Morris, Elusive Equality: The Status of Black Americans in U.S. Higher Education (Washington, DC: Howard University Press, 1979), 194–95 34. William Julius Wilson, “Race-Neutral Programs and the Democratic Coalition,” The American Prospect, no. 1 (Spring 1990): 79 35. Supra, note 19, at 17. 36. Ibid. 37. Professor Mack Jones argues that structures for enforcing civil and voting rights often serve to modify but otherwise fundamentally reinforce white dominance. See Mack Jones, “The Voting Rights Act . . . ,” in Franklin D. Jones and Michael Adams, Reading in American Political Issues (Dubuque, IA: Kendall Hunt, 1987). 38. The Humphrey-Hawkins Full Employment Act (1978) provides the best and most instructive example of what occurs when a decent, very useful (if not absolutely necessary) idea, combined with a strong, broad-based effort, encounters the perception that its core focus is “race-specific.” For a detailed and enlightening discussion of this problem as demonstrated by Humphrey-Hawkins, see Robert C. Smith, We Have No Leaders (Albany: State University of New York Press, 1996), 187–210. 39. Fullilove et al. v. Klutznick et al., 448 U.S. 448 (1980) 40. Richmond v. Croson, 109 S. Ct. 706 (1989) 41. 480 F.2d 1159, 156 U.S. App.D.C. 267. 42. Tollett, Kenneth S., Black Colleges as Instruments of Affirmation Action (Washington, DC: Howard University Institute for Study of Educational Policy, 1982), 41, 54. 43. Ibid. 44. U.S. v. Fordice, 505 U.S. 717 (1992) 45. W. E. B. Du Bois (New York: Harcourt, Brace, and World, 1968), 134.

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“TELL THE COURT I LOVE MY [INDIAN] WIFE”: INTERROGATING RACE AND SELF-IDENTITY IN LOVING V. VIRGINIA Arica L. Coleman

This chapter reexamines the Loving v. Virginia case by focusing on the triracial community of Central Point, Virginia, and Mildred Loving’s self identity as an Indian woman. Loving’s self identity was informed by the twentieth-century politics of racial purity, which resulted in a community-wide denial of African ancestry. I argue that Mildred Loving’s marriage to a white man was not an affirmation of black/white intermarriage but, rather, adhered to the code of racial purity as defined by the state of Virginia, a legacy that continues in the post–Civil Rights era. [W]riters are always finding blacks, and they are always losing Indians. —Jack D. Forbes, The Manipulation of Race

The 1967 case of Loving v. Virginia, in which the Supreme Court declared antimiscegenation laws unconstitutional, has garnered far less scholarly attention than its 1954 predecessor, Brown v. the Board of Education, which overturned legalized segregation. What little has appeared in the way of scholarship has focused on analyzing the history of antimiscegenation legislation, the events that led up to the case presentation before the nine justices, the legal precedents regarding the arguments presented before the court, and the unanimous decision delivered by Chief Justice Earl Warren. Until recently, with the exception of an article that appeared in Ebony magazine several months after the Supreme Court decision, writers have given little attention to the personal lives of the actual plaintiffs now enshrined in American history as “the couple that rocked the courts.”1 In particular, the racial designation of the

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couple has been merely taken for granted. Famed African American journalist Simeon Booker’s assertion in an article for Life magazine that, “She is Negro, he is white, and they are married,” reflects this assumption.2 In addition, although Peter Wallenstein states that the nine justices overcame their reluctance to rule on the question of miscegenation because interest in the question went beyond black–white marriage, Lawyers Bernard Cohen and Philip J. Hirshkop’s conceptualization of the case as overturning the last of the odious laws of slavery and segregation once again reified the racial dichotomy of white and black within American racial discourse.3 As a consequence, the arguments presented before the court and later the majority opinion obscured racial issues beyond the boundaries of black and white, namely black–Indian relations in the south and the mixed-race identity of Mildred Loving. As Wallenstein, asserts “There was no doubt in anybody’s mind as to the racial identifies, white and black, of the people who claimed to be Mr. and Mrs. Loving.”4 The uncritical assumption of the racial identity of the Lovings, and particularly that of Mildred Loving, can be further demonstrated in the ways writers have characterized the couple. In an article published by Emerge magazine to commemorate the thirtieth anniversary of the Loving decision, staff writer Victoria Valentine quotes Attorney Hirshkop as stating of Richard Loving, “You would think he was a real redneck. He looked like a real redneck. He talked with that accent. He was into things rednecks are into. . . . The flaw in the redneck personality was he was just delighted with Mrs. Loving. They were very much in love.”5 Hence, Phyl Newbeck, though identifying Mildred Loving as a woman of mixed African and American Indian ancestry in her recently published book on the Lovings, summarized Hirshkop’s statements by concluding, “By many accounts, Richard Loving looked like the last guy in the world to risk going to jail to defend the honor of a black woman” (italics mine).6 Professor Richard Pratt, in a 1998 personal and historical narrative on the Lovings, also collapsed Mildred Loving’s racial identity into a singular black identity stating, “she [Mrs. Loving] still sees herself as an ordinary black woman who fell in love with an ordinary white man.”7 Newbeck, in turn, makes the same claim by taking Pratt’s words and misrepresenting them as a direct quote from Mrs. Loving. Hence, even those who acknowledge her mixed-race identity eventually see her “blackness” as a negation of her American Indian identity; however, the famed Supreme Court plaintiff does not see it that way. In fact, neither in the past nor in the present does Mildred Loving self-identify as a black woman. During an interview in July 2004, Mildred Loving declared, “I am not black. I have no black ancestry. I am Indian—Rappahannock. I told the people so when they came to arrest me.” Mildred Loving only lays claim to an ancestry that is American Indian and white. The framed Washington, DC, marriage license that the Lovings proudly displayed in their bedroom on the day they returned to Virginia confirms Mrs. Loving’s self-identity. It reads: “Richard Perry Loving—White; Mildred Delores Jeter—Indian.” Richard Loving was not defending the honor of a black woman, for in his mind he had not married a black woman, but an Indian woman. Therefore, viewing the Loving case only in terms of black and white has obscured some of the far more complex issues surrounding it; namely, African American–Native American relations, mixed-race identity, and the right to self-definition. This chapter

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focuses on these issues by examining the rural community that nurtured Mildred Loving’s identity, the representation of her identity in popular and scholarly works, and the dilemma that such self-naming presents in the post–Civil Rights era.8 In 1792, Mary Hemings, the half sister of Sally Hemings, approached her slave owner, Thomas Jefferson, with a request that she and her two children be sold to a local businessman by the name of Thomas Bell. Several years before that, Hemings had been leased to Bell, and during the course of that time, the two became lovers. Bell, as Jefferson was well aware, was the father of Mary Hemings’s children. Subsequently, Jefferson granted Hemings’s request. As Annette Gordon-Reed notes, “Bell and Hemings, who adopted the last name of her master/lover, lived as husband and wife for the rest of Bell’s life in a relationship whose continuance Thomas Jefferson made possible.”9 Of course, the “marriage” had no legal sanction. Nevertheless, as Joshua Rothman notes, Jefferson went beyond simply assisting one interracial family. Rothman asserts: The sale of Hemings to Bell was the first important moment in the evolution of what soon became a burgeoning multiracial community in downtown Charlottesville. The boundaries of this community extended beyond the town’s borders and held together free and enslaved Virginians of European, African, and Native American descent through marriage, extended family ties, and mutual economic support networks.10

Almost one hundred fifty years later, Richard and Mildred Loving would be nurtured in a multiracial community such as the one Jefferson helped spawn in Charlottesville. The earliest statutes recorded by the legislature of the Virginia Colony demonstrate the Commonwealth’s long obsession with racial purity. A 1630 judgment that called for Hugh Davis to be “soundly whipped” for “defiling his body in lying with a Negro” marks the first documented record in Virginia’s long fight against the interbreeding and intermarrying of whites with nonwhites. From this September 30, 1630, event until the end of the nineteenth century, the Virginia General Assembly enacted no fewer than forty statutes against what a 1691 statute described as “that abominable admixture and spurious issue.” Yet such restrictions did not apply to the nonwhite population, which, among other groups, comprised Negroes, Indians, and mulattoes.11 Although the definitions of these categories would prove flexible over time and were not applied with any measurable consistency, the reality is that during the course of American and Virginian history, peoples of African, American Indian, or part African American–Indian descent were included in these categories throughout the colonial period. As a result, people of African and American Indian descent freely intermingled and intermarried, as many shared a common lot as chattel slaves or free disenfranchised citizens. In addition, they also shared racial labels during the antebellum period as Virginia identified its nonwhite population using terms largely associated in contemporary American society with people of African descent, such as Negro, mulatto, colored, free people of color, or black. Not until 1860 was the category Indian again recognized. Incidentally, with racial mingling occurring between Africans and Indians during a large portion of the colonial/antebellum periods, in addition to the cross sharing of racial labels, the line between who was an Indian and

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who was an African American became blurred. Reflecting on the blurred lines between peoples of African and American Indian descent in his native home of Oklahoma, author Ralph Ellison states: “And there was the Indian-Negro confusion. There were Negroes who were part Indian and who lived on reservations, and Indians who had children who lived in towns as Negroes, and Negroes who were Indians and traveled back and forth between the groups with no trouble.”12 However, there was much trouble in Virginia as a result of this Indian–Negro confusion. In the early twentieth century, Virginia was obsessed with eugenics, the pseudoscientific dogma of “good breeding.” In 1924 the Virginia General Assembly passed the Racial Integrity Act in an attempt to preserve the “purity” of the white gene pool. This legislation was the brainchild of John Powell of Richmond, Virginia. Powell was a renowned classical musician and an ardent white supremacist. His efforts were supported by ethnologist Earnest S. Cox and Walter Plecker, the Virginia State Registrar. These men were firm believers in racial purity and led a campaign to guard against race suicide and mongrelization. When the racial integrity legislation was first proposed, Powell and his comrades defined whiteness very narrowly, allowing just those of only Caucasian ancestry to be classified as white. However, members of the Virginia aristocracy, who prided themselves in claiming to be descendants of Pocahontas and John Rolfe, challenged this definition. As a result, the Pocahontas exception, allowing for anyone of Caucasian and one-sixteenth American Indian ancestry to be classed as white, was written into the law to appease the “first” families. Nonetheless, convinced that blacks would infiltrate the white race by claiming to be Indian, Powell, Cox, and Plecker began a fierce campaign to have all Virginia Indians reclassified as Negro and barred from marrying whites. Subsequently, the absence of African American ancestry became the sine qua non of American Indian identity, and many Indians began to deny their African heritage. Such was the case of Central Point, Caroline County, the racial identity of which was constructed within a white–Indian dichotomy.13 Caroline County became the twenty-ninth county of the Commonwealth in 1727, during the first year of the reign of George II, and was named for his queen Caroline. The county, which is thirty miles long and twenty miles wide, lies about thirty miles northeast of Richmond. It has two incorporated towns, one of which is the county seat, Bowling Green. Bowling Green is divided into a number of smaller communities, one of which is the town of Milford. Within Milford is a tiny area known as Central Point, the small, rural community that Richard and Mildred Loving called home. Central Point was Plecker, Cox, and Powell’s worst nightmare. There was so much race mixing that the racial lines proved barely distinguishable. For this reason Central Point earned the nickname “the passing capitol of America.” The Loving’s marriage license identifies their place of residence as “Passing, Virginia.”14 What is known of the early history of Caroline County and its surrounding communities has been written by local historians and provides a bare sketch of the multiracial character of its towns. The Rappahannock Indians were the dominant tribe residing in the area. As a result of the English invasion, the Rappahannocks would be scattered over three counties (Caroline, Essex, and King and Queen). Although they are predominantly located in King and Queen County, which lies south of Caroline

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(Caroline was formed from the northern tip of King and Queen County), descendants of the tribe remain in Caroline County to this day. The Rappahannocks, however, were not the only tribe in the area. According the Ralph Emmett Fall, as a result of a civil war, The Dogue Indians, who were originally in King George County (north of Caroline across the Rappahannock River), split three ways. One of the splinter groups found their way to the area of Milford and set up a community later dubbed Doguetown. The Dogue have been long declared extinct; however, they may have been absorbed into another tribe or absorbed by non-Indians in the area. In addition to Amerindians and whites, people of African or part-African descent were also in the area very early in its history. According to Fall, from 1757–1764 “a licensed tavern was operated at Doguetown as an early slave-trading center.” There were other such taverns all over the county. Thus, from colonial times a multiracial presence was evident in Caroline County.15 Regarding Central Point, the area was recognized as having an American Indian presence during the period the Lovings married. Quoting a local historian, Fall states, “It is said that some of the descendants of the Indian villages located in the present Camp A. P. Hill area, in colonial times and earlier, have settled in and around Central Point, and here they can be found even to this day.”16 Hence, early in the colony’s history, there were at minimum three racial groups residing in the region. Yet with the high level of commingling that occurred in Central Point, accuracy in determining racial designation involved guesswork. Simeon Booker in his 1967 article on the Lovings stated that not only was the Loving decision “the high point of a great love story, a saga brimming with faith, determination, and underlying devotion. . . . But in addition to this was the unpublicized smash-up of an illicit system of white-Negro relations in Caroline County.” This system involved sex across the color line, which produced a multiracial community minus the sanction of marriage. As Phyl Newbeck states, “ Inhabitants have described Central Point as a place where black and white families were friendly with one another and sexual relations across the color bar was not uncommon. Mixed children were prevalent, but they were generally the product of non-marital sexual relations.” This was a longstanding practice throughout the South, as marriage across the color line was avoided so as not to legitimate mixed-race bloodlines.17 It is within this atmosphere that the love relationship of Mildred Jeter and Richard Loving blossomed. Similar to many in their community, Richard and Mildred’s relationship began as a typical interracial moonlighting romance. Nevertheless, when Mildred became pregnant with their first child, the couple decided to do what others had dared not attempt—get married. Of Richard Loving, one local farmer states, “A lot of folks down here just don’t have the guts Richard had. There has been plenty of mingling among races for years and nobody griped or tried to legalize it. . . . Rich just wasn’t the type. What he wanted, he wanted on paper and legal.”18 Mildred, who claimed to have had no knowledge that marrying Richard was against the law, accompanied her fiancé to Washington, DC, where they married on June 2, 1958. Immediately after they eloped, the Lovings returned to Central Point to reside with Mildred’s parents while Richard made plans to build a house for his new family. The newlyweds slept in a downstairs bedroom, where they proudly displayed

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their framed marriage license. On July 11, 1958, as the Lovings lay asleep in their bed, the sheriff, accompanied by two additional law enforcement officers, burst into the couple’s bedroom and arrested them for miscegenation—a felony. Not only was their marriage license deemed invalid in the state of Virginia but Mildred Loving’s claim as American Indian, under the 1930 amendment to the Racial Integrity Act, did not exempt her from the law.19 With the marriage declared illegal, two separate warrants were issued for Richard Loving and Mildred Jeter under criminal dockets 928 and 929, respectively, along with an indictment, which repeated the same charge: Richard Loving, a white person and Mildred Jeter, a colored woman unlawfully and feloniously did go out of the state for the purpose of being married, and with the intention of returning to the State of Virginia, and were married outside of the State Virginia, to-wit, in the District of Columbia . . . and afterwards returned to and resided in the County of Caroline, State of Virginia, cohabiting as man and wife, against the peace and dignity of the Commonwealth.20

The Lovings were in violation of Virginia code 20-54, which declared marriages between whites and blacks unlawful, and code 20-58, which made it unlawful to go out of state to marry and then return to cohabitate as husband and wife. The punishment for their crime was for each to spend a year in the penitentiary. However, on January 6, 1959, Judge Leon M. Bazile suspended the sentence, provided that the couple leave the state “at once and do not return together or at the same time to said county and state for a period of twenty-five years.” The Lovings moved to Washington, DC, but they never adjusted to urban living. In 1992 Mildred Loving told legal historian Philip Nash of the Washington Post, “I missed my friends and family and walking on grass instead of concrete. . . . I missed the open spaces for the children and just walking down a country lane to pick up my mail.”21 Missing their families and their rural community, the couple in 1963 returned to the Virginia court to request that their 1959 judgement be vacated and the sentence be set aside. The Lovings went before the same judge who had handed down the original decision. Judge Bazile denied the motion, stating, “Almighty God created the races white, black, yellow, malay, and red, and he placed them on separate continents. And but for the interference with his arrangement, there would be no cause for such marriages. The fact that he separated the races showed that he did not intend for the races to mix.” Mildred’s cousin, with whom she and her family resided in the District of Columbia, suggested that she write to then–Attorney General Robert Kennedy about her family’s dilemma. The Attorney General’s office forwarded her letter to the American Civil Liberties Union. Bernard Cohen, who at the time was doing pro bono work for the agency, decided to take the case. Philip J. Hirschkof signed on as co-counsel when he joined the Cohen firm. The two lawyers foresaw that the case would eventually reach the doorstep of the Supreme Court. However, whether the nine justices would hear the case was questionable, as they had previously refused to hear the case of Naim v. Naim in 1955.22

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The Naim case involved Ham Say Naim, a Chinese sailor, and his white wife, Ruby Elaine Naim of Virginia, whom he married in North Carolina. Whereas Virginia held that whites could only marry whites, North Carolina restricted white–black marriages only. Therefore, the Naims’ white–Chinese marriage was legal in North Carolina. The couple returned to Virginia and lived for a time in Norfolk but later separated. Ruby Naim petitioned the Virginia court to grant her an annulment, accusing her husband of adultery; however, if the court refused to grant her petition on that ground, she requested that the petition be granted on the basis of Virginia’s antimiscegenation law. The judge saw this as an open-and-shut case and granted Ruby Naim’s petition based on the latter claim. However, Ham Say Naim, who was seeking American citizenship, which depended on his marriage to an American citizen, challenged the verdict, stating that it violated his rights under the Fourteenth Amendment. Nevertheless, similar to the Lovings, who would use the same argument ten years later, the Virginia Supreme Court unanimously ruled against Ham Say Naim. Yet, unlike with the Lovings, the U.S. Supreme Court refused to hear the case. Subsequently, in the 1964 Supreme Court case of McLaughin v. Florida, in which a white woman and black man were arrested for unlawful cohabitation, the justices, though not overturning antimiscegenation laws, unanimously voted to overturn the couple’s conviction, stating that “a state could not use the law that specifies race to keep people from living together.”23 By the time the Loving case reached the high court, twenty of the thirty-one states that had once enforced antimiscegenation laws had repealed them. However, eleven states, all in the south, remained steadfast in their position against mixed-race marriages. Realizing that they could no longer hold off on ruling on the question of marriage across color lines, the Supreme Court agreed to hear the Loving case on December 12, 1966. Both sides presented their arguments on April 10, 1967. On June 12, 1967 the high court handed down its decision, which overturned the Lovings’ conviction and declared antimiscegenation laws unconstitutional. One Caroline County leader didn’t mince words when citing the effect of the high court’s verdict, “The power boys in the county despised Richard because he ended the white man’s moonlighting in romance. Now they got to cut out this jive of dating Negro women at night and these high yaller Negroes got to face up to the facts of life. They don’t have to pass anymore.”24 Although Caroline County has been described as “an area known for relatively benign race relations” and Central Point as “a place of surprising racial harmony” as a result of much commingling of the races, such characterizations obscure the complex ways in which the county residents negotiated race in their daily lives, as well as the deep racial feelings exhibited within the community. From an outside perspective, it indeed appears that Central Point was racially harmonic. Richard Loving’s father had been an employee of P.E. Boyd Byrd, one of the wealthiest “black” men in Caroline County. The elder Loving worked for Byrd for twenty-five years until a sawmill accident forced him to retire. Byrd, incidentally, was related to Mildred on her mother’s side. Richard was good friends with Mildred’s brothers and was also a partner in one of the most successful integrated drag racing teams in the country. Richard’s drag racing partners were two “Negroes,” mechanic Raymond Green, who continues to own and operate Green’s Garage and Towing (the only remaining business in Central

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Point), and Percy Fortune, Central Point’s former grocery store owner. Of his two partners, Richard stated, “These are my friends . . . for the sport has interwoven wives and children into a ‘motor clan.’” Although both Green and Fortune are identified in Simeon Booker’s article as Negro, it is uncertain whether they self-identified as Negro or whether the designation was an imposition of the author. Booker, although well aware of the multiracial presence of Central Point, could not present his subject outside of the usual black–white dichotomy.25 However, the question remains concerning how Richard Loving perceived his friends and his wife. Booker states that Richard Loving possessed a “raceless attitude.”26 According to Booker, Loving stated, “Everybody looked alike to me. I just never figured out all of this would happen. I just did not know about all of this stuff.”27 If these are indeed the words of Richard Loving, it is hard to imagine that he was being forthright. How could he not know about “all of this stuff ”? Although he claimed that he had never ventured outside of the county line, he was well aware that Caroline was segregated. In fact, he and his “colored” friends had gone to separate schools. Richard caught the “white” bus and attended “white” schools, while his friends caught the “colored” bus and attended “colored” schools. In addition, Richard Loving was well aware that he could not marry Mildred Jeter in Virginia. It seems that Richard “did not figure out all of this would happen,” because he never thought that anybody from his “racially harmonized” community would reveal his secret.28 On the contrary, Central Point, Caroline County was not as raceless as has been reported. Caroline County residents in general, and Central Point residents in particular, were indeed cognizant of the racial hierarchy, which granted social privilege to whites, an honorary white privilege to Indians, and no social privilege to blacks. Observations made by Marshall Wingfield in his 1924 history of Caroline County inadvertently demonstrate that the residents of Central Point were well aware of Virginia’s racial mores, and by the time the state had passed the Racial Integrity Act of 1924, an identity void of Negro ancestry was well ingrained. Wingfield, in describing the members of Saint Stevens Baptist Church, the social haven of the Central Point community, states: There are few members of this congregation who have as much as one-half negro blood. The people of the church and the community as a whole are very nearly white and out of their community could not be recognized or distinguished as colored people. It is said that the predominating blood in them is that of the Indian and white races.29

It appears that despite a known black presence, the residents of Central Point chimed in with those of the American Indian community in articulating an Indian–white only identity. As a consequence, once out of their community, many simply passed for white. As Booker states, Central Point “is the source from which hundreds of young men and women have migrated to cross the color line, later marrying and working with whites in cities throughout the country.” Many of the youngsters even attended “white only” establishments within the county without anyone suspecting that they were in violation of segregation laws. School officials at Union High School, where Mildred Loving attended before dropping out while in the eleventh

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grade, were well aware that Central Point students frequently “passed” when they ventured beyond the boundaries of their community. One official was quoted as stating, “These people have infiltrated the white race more than any group of Negroes. When a student plays hookey from school for a week and says an in-law is visiting the family, we understand. The kids just can’t afford to catch the Negro school bus without giving away the racial identity.” A teacher was quoted as saying, “The light skinned students always come from Central Point. . . . We hardly hear about them after they finish. They are clannish and proud.”30 Booker also reports that the integration of the armed forces put “passing Negroes” in a precarious position, as one resident recalled that he had to drive one of his GIs to Central Point so that his white army buddies wouldn’t know where he lived and betray his racial identity.31 However, not everyone in Caroline County or Central Point was light enough to pass for white; thus, those of darker hue attributed their pigmentation to American Indian ancestry. As Pratt notes: Some of the blacks in the area who were light enough to pass as white often did so, and some of those who complexion was a little darker often claimed to be Native American, even though most of them were known to have black relatives. While there is undoubtedly a Native American presence in Caroline County, not everyone who claimed to be an “Indian” really was, but given the racial climate of the 1950s, some blacks thought it more socially acceptable to emphasize their Native American rather than their African ancestry.32

Hence, the residents’ choosing one racial identity over the other clearly demonstrates that contrary to the idyllic representation of a harmonious racially benign society, Central Point was a microcosm of Virginia’s established racial norms. Race indeed mattered in Central Point, as it did all over the state as well as the nation. So strong was the resistance to being classed as a Negro that Oliver Fortune, a resident of Central Point, refused to report for military duty during World War II because he did not want to be enlisted as a Negro. Chief Otho Nelson of the Rappahannock tribe, writing to anthropologist Frank Speck regarding Fortune’s case, stated, “The boy says he will go to the pen before he will take the negro status to go down in history as negro.” Although Fortune steadfastly denied that he was Negro, the Selective Service determined that his racial designation was correct because his parents had purchased a house as colored people and he had attended colored schools. Incidentally, Fortune and two others were incarcerated for refusing to cooperate with the draft but were later released and allowed to participate in a program for conscientious objectors. In addition, Fortune’s name appears among the organizers of the Powhatan Confederacy during the 1970s as Assistant Chief of the Rappahannock Tribe.33 Much like Oliver Fortune, Mildred Loving’s racial identification was established as a result of her birth certificate, which identifies her parents, Theo Jeter and Musie Byrd, as colored. Although her parents cannot be located on the census, a search through the Caroline County Census Records from 1870 to 1930 reveals that the Jeters were identified as mulatto in the nineteenth century, but by 1930 they were identified as Negro. In contrast, the Byrds were overwhelmingly identified as black

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until the 1910 census, in which they are either identified as colored or mulatto. The same designation occurs on the 1920 census, but by 1930 the family is solely classified as Negro. Nevertheless, as stated earlier, racial designations on various government documents have been problematic from the beginning, as many individuals of American Indian or part American Indian descent were designated as mulatto, Negro, or black. Mildred Loving’s self-identity defies what has been documented on government records or printed in the press. According to Mildred Loving, her mother was fullblooded Rappahannock, her father was Rappahannock and white. When asked about her African American ancestry, she stated that to her knowledge she had no African American people in her family. “I know my grandmother was from Portugal, but as far as I know, no one in my family was black.” When informed that one of her acquaintances (Richard Pratt) identified her as black and Cherokee, she stated, “Well you can’t help what people write. People still refer to me as black, but I don’t pay that no mind.” When asked about the Rappahannock’s association with blacks, Mildred Loving flatly denied such associations stating, “No, the Rappahannocks never had anything to do with blacks.”34 Despite Mildred Lovings claims of non-African ancestry and the Rappahannocks supposed nonassociation with people of African descent, others disagree. One longtime Caroline County resident said, “That’s not true. That’s why I hate to fool with them people. They always trying to be something they ain’t. Everybody either Indian or white. Nobody a nigger.”35 Another long-time resident stated: The “we only white and Indian” thing was what the old folks said, and some people still like to believe that, but it’s not true. There was a lot of mingling down here between the blacks, the whites, and the Indians. Not just in Central Point, but all over Caroline County. As far as the Rappahannocks go, they are mostly light skin, but they got black relatives right here in this area. I know some of them. Honestly, people are so mixed down here you can’t say what you are or what you are not. Sometimes, it is really hard to tell.36

These two residents, who spoke on condition of anonymity, expressed the same feelings as many African Americans in the Tidewater region of Virginia: “A lot of us feel that these folks claiming to be Indian are only getting away with it because they got that skin color and that hair. Regardless, we know who and what they are.”37 It appears that many of Mildred Loving’s close acquaintances assumed they knew who and what she was. Bernard Cohen, who has been Mildred Loving’s lawyer since taking her case in 1964, was surprised to learn that his client self-identified as American Indian. “That’s news to me,” he replied. When asked if at any time during the 1960s ordeal she ever insisted that she be racially designated as American Indian, Cohen replied, “No, she has always insisted that she was part black and part American Indian.” Nonetheless, Cohen’s statement betrays his confidence, as it appears that perhaps there was a battle over her racial designation during her court ordeal. It seems improbable that she would have to insist that she was black. Perhaps while everyone else insisted that she was black, Mildred Loving fought for her selfidentification as Indian. Yet this would no doubt cast more controversy on the case

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and throw a monkey wrench into Cohen and Hirschof ’s argument, for how were they to present a case that called for the dismantling of the last odious laws of slavery and segregation to a Supreme Court who saw these issues only in terms of black and white?38 The two lawyers probably saw their victory quickly slipping away. Perhaps to settle the dispute a compromise was reached in that Mildred Loving would assume the identification of a mixed African Indian woman. However, although Mildred Loving may have gone along with this arrangement, in her mind her identity was settled: She was Indian. As her lawyers were well aware, however, the court would not acknowledge her right to self-identification. According to judicial law, Negro + Indian = Negro, enforcing the long history of the “law” of hypodesent, which classified American Indian or part–American Indian peoples as simply Negroes. Despite the judicial system’s refusal to acknowledge Mildred Loving as a mixed-race woman, newspapers periodically gave it an honorable mention. As the opening epigraph demonstrates, however, writers always found her black identity but often lost her Indian identity. Identifying Loving’s mixed-race identity proved to be hit and miss. The Richmond News Leader reported on the case more than any other paper in the state. An October 28, 1964, article identified the plaintiffs of the suit as “Richard Perry Loving who says he is white and Mildred Jeter Loving who says she is a negro.” However, the following day, the Richmond News Leader quoted Mildred Loving as saying that she “was half Negro and half Indian.” Almost two months later on December 28, 1964, the Richmond News Leader lost her Indian half, stating of Mildred that “she is Negro.” On February 12, 1965, the paper rediscovered her Indian half and identified Mildred as “part Negro and part Indian.” Nevertheless, two years later, when reporting on the Supreme Court Decision, the Richmond News Leader once again lost the Indian half of Mildred’s identity and simply identified her as Negro. The Richmond Times Dispatch reported her identity in a similar pattern.39 The same shifts occurred in national newspapers such as the Washington Post and the New York Times. The Post, on October 28, 1964, identified Mildred as Richard’s “negro wife.” Two days later, she was identified as “part negro and part Indian.” Two months later, on December 29, 1964, the Post identified her as “negro.” The Post continued to solely identify Mildred Loving as Negro in two subsequent articles on June 12 and December 9, 1965. On January 8, 1966, Mildred was once again identified as “part negro, part Indian”; nevertheless, the article dated July 30, 1966, and all other articles that follow solely identify Mildred Loving as Negro. The same pattern is repeated in the New York Times: on December 13, 1966, the Times identified Mildred Loving as “part-Negro, part-Indian,” yet once again, when reporting the Supreme Court ruling on June 13, 1967, she is identified as “a negro woman.”40 In recent years, Mildred Loving’s mixed-race ancestry has been increasingly acknowledged, but her American Indian ancestry continues to be both lost and found. In a New York Times article published on June 12, 1992, commemorating the twenty-fifth anniversary of the Loving decision, author David Margolick identified Mildred Loving as black. Two months later an article in the Free Lance-Star of Fredericksburg, Virginia, published on Saturday, August 1, 1992, also identified

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Mildred Loving as black. In addition, two commemorative articles appeared in the Washington Post. The June 12, 1992, article identified Mildred Loving as black. However, two days later another article appeared in the Post, identifying her as “Cherokee and African American.” The author, Philip T. Nash, also identified Richard Loving as “English and Irish.” Yet Nash also acknowledges that, “Under Virginia law he was ‘white’ and she was ‘colored.’”41 Although Nash erroneously identifies Mildred Loving as Cherokee, he takes a rare opportunity not only to analyze the meaning of the Loving legacy but to critique the politics of race and to grapple with issues of race left unanswered by the court; namely, that of the racial classification of mixed-race children. Nash writes: But the Loving decision was more than the victory of one couple. It was a landmark instance of using the law to achieve justice. It drew attention to the absurdity of “race” terms that are biologically meaningless and arbitrarily concocted to promote segregation and hierarchy. . . . It freed children of mixed-race parentage from being considered bastards—although under our system of terminology they still must define themselves by the race of one parent and not the other.42

Although the federal government refused to allot a separate mixed-race category on the 2000 census, it did, however, allow citizens, for the first time, to check off more than one racial category. Although many people saw this as an end to the one-drop rule, the Clinton administration ruled that any person who checked multiple boxes that included a black identification would still be counted as black. Despite the increasing acknowledgment of her mixed-race ancestry, the law of hypodescent continues to win out both in the census and the Loving case. This was demonstrated most recently in a June 2006 Washington Post article commemorating the thirtyninth anniversary of the Loving decision, in which Mildred Loving was identified as black. In the final analysis, writers do not view her as a red/black woman but simply as an “ordinary” black woman.43 Despite this representation, it seems that the story Mildred Jeter began to write on the day she became Mildred Loving, is the day enshrined on her marriage license, is the story she is sticking with. Her American Indian identity has also caught fire in her grandson, Marc Fortune, the son of Mildred’s daughter Peggy Loving Fortune, whose husband also lays claim to an American Indian identity. When Mildred Loving’s son, Donald, died unexpectedly in 1994, Marc, according to an attendee, arrived at his uncle’s funeral dressed in native regalia and performed a “traditional Rappahannock” ritual in honor of his deceased uncle. It appears that by all indications he has adopted his grandmother’s sentiments of self-identifying exclusively as Native American.44 Mildred Loving has been hailed for the last forty years as a champion of civil rights; however, she continues to be “as reluctant to acknowledge her contribution to it as she once was to participate in it.” Perhaps her reluctance to be identified with the civil rights movement stems from the same attitude displayed by Oliver Fortune, who refused to be enlisted in the armed services as a black man because he did not want to be remembered in history as a Negro—a person identified as having African ancestry. Certainly, anyone, including Mildred Jeter Loving, deserves to have his or

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her right to self-definition respected. Nevertheless, viewed within the historical context of Virginia history in general, and Central Point history in particular, it appears that the couple who rocked the courts shared more in common with their opponents than they may have realized. Although Mildred Loving acknowledges that the Supreme Court decision helped to change a great deal in race relations, she also acknowledges that there are still some who hold onto the old attitudes. According to Margolick’s 1992 article, R. Garnett Brooks, the sheriff who arrested Richard and Mildred Loving in 1958, stated, “I was acting according to the law at the time and I think it should be still on the books. . . . I don’t think a white person should marry a black person. I’m from the old school. The Lord made sparrows and robins not to mix with one another.”45 It appears that the former sheriff is not alone, as others have expressed similar sentiments. In February 2004, the Rappahannock Indian Baptist Church refused membership to a couple, Lori and Jasper Battle, who are Native American and African American, respectively. Still haunted by the consequences of the Racial Integrity Act, it is customary for state-recognized Indians to avoid association with blacks for fear of ethnic reclassification. It appears that the 1967 Supreme Court decision has had little to no effect on African American–Native American relations, as many Indians cling to the old myth of racial purity, a myth from which even Mildred Loving cannot seem to break herself free. Hence, both in word and action, blacks and Indians must maintain the protocols of segregation, as has been and continues to be dictated by the dominant culture, to preserve the racial integrity of the Virginia Indians. Despite this, Mildred Loving believes that “attitudes towards people have really changed. The old south is going away.”46 If the old south is indeed going away, as Mildred Loving suggests, it is doing so at a snail’s pace. NOTES 1. Simeon Booker, “The Couple That Rocked the Courts,” Ebony (September 1967). 2. Idem, “The Crime of Being Married: A Virginia Couple Fights to Overturn an Old Law Against Miscegenation,” Life (March 18, 1966): 85. 3. Peter Wallenstein, Tell the Court I Love My Wife: Race, Marriage and Law—An American History (New York: Palgrave Macmillian, 2002), 216; Bernard Cohen, Supreme Court Argument (April 10, 1967). 4. Wallenstein, Tell the Court, 216. 5. Victoria Valentine, “When Love Was A Crime,” Emerge (July 1997): 61. 6. Phyl Newbeck, Virginia Hasn’t Always Been for Lovers: Interracial Marriage Bans and the Case of Loving v. Virginia (Carbondale: Southern Illinois University Press, 2004), 17; emphasis added. 7. Richard Pratt, “Crossing the Color Line: A Historical Assessment and Personal Narrative of Loving v. Virginia,” Howard Law Journal 41 (1998): 244. 8. Mildred Loving of Virginia, interview by author (July 14, 2004). The Rappahannock tribe is one of eight state-recognized tribes in Virginia. Marriage license obtained from Superior Court of the District of Columbia. 9. Annette Gordon-Reed, Thomas Jefferson and Sally Hemings: An American Controversy (Charlottesville: University Press of Virginia, 1999), 136.

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10. Joshua D. Rothman, Notorious in the Neighborhood: Sex and Families Across the Color Line in Virginia 1787–1861 (Chapel Hill: University of North Carolina Press, 2003), 53. 11. June Purcell Guild, Black Laws of Virginia (Lovetteville, VA: Willow Bend, 1996), 21, 24. For more on the changing definitions of race see Jack D. Forbes, Africans and Native Americans: The Language of Race and the Evolution of Red-black People, 2nd ed. (Urbana: University of Illinois Press, 1990). 12. Ralph Ellison, “Hidden Names and Complex Fate: A Writer’s Experience in the United States,” in The Collected Essays of Ralph Ellison, ed. John F. Callahan (New York: Modern Library, 1995), 201–2; For a more in-depth view of the racial political structure in Oklahoma regarding blacks and Indians see Peter Wallenstein, “Native Americans Are White, African Americans Are Not: Racial Identity, Marriage, Inheritance, and the Law in Oklahoma, 1907–67,” Journal of the West 39, no. 1 (2000)” 55–63; see also Jack D. Forbes, “The Manipulation of Race, Caste, and Identity: Classifying AfroAmericans, Native Americans, Red-Black People,” The Journal of Ethnic Studies 17, no. 4 (1990): 22. 13. For more on eugenics and Virginia, see J. David Smith, The Eugenics Assault on America: Scenes in Red, White, and Black (Fairfax, VA: George Mason University Press, 1993); Michael Dorr, “Segregation’s Science: The American Eugenics Movement and Virginia, 1900–80” (PhD diss., University of Virginia, 2000); for more on African American–Native American relations and racial identity in Virginia, see Arica L. Coleman, “Notes on the State of Virginia: Africans, Indians, and the Paradox of Racial Integrity” (PhD diss., Union Institute and University, 2005). 14. Marshall Wingfield, A History of Caroline County Virginia: From Its Formation in 1727 to 1924 (Richmond, VA: Trevvet Christian, 1924), 1; Caroline County Web site, http://www.co.caroline.va.us/; Booker, “The Couple That Rocked the Courts,” 78. 15. Ralph Emmett Fall, People, Post Offices and Communities in Caroline County, Virginia, 1729–1969 (Roswell, GA: W. H. Wolfe, 1989), 185, 187. 16. Ibid., 91. 17. Booker, “The Couple that Rocked the Courts,” 78; Newbeck, Virginia Hasn’t Always Been for Lovers, 21. 18. Booker, “The Couple that Rocked the Courts,” 80. 19. In 1930 the Racial Integrity Act was amended to restrict the definition of Indian to include only those Indians residing on the reservation. It stated, “Every person in whom there is ascertainable any negro blood shall be deemed and taken to be a colored person, and every person not a colored person having one-fourth or more of American Indian blood shall be deemed an American Indian, except that members of the Indian tribes living on reservations allotted them by the commonwealth of Virginia having one-fourth or more Indian blood and less than one-sixteenth of negro blood shall be deemed tribal Indians so long as they are domicile on said reservations.” W. E. B. Du Bois responded to this amendment in an editorial entitled “Virginia.” See Du Bois , Writings in Periodicals: Selections from the Crisis (New York: Kraus International, 1981), 580; the Pamunkey and Mattiponi tribes own the two oldest reservations in the United States, established in the eighteenth century and located in King William County, Virginia. 20. Arrest warrant for Richard Perry Loving; Arrest warrant for Mildred Delores Jeter (July 11, 1958); Grand Jury Indictment (January 6, 1959). Loving Papers. Central Rappahannock Heritage Center. The warrant and indictments were not issued for

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24. 25.

26. 27. 28. 29. 30. 31. 32. 33.

34. 35.

36. 37. 38. 39.

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Mr. and Mrs. Loving, as Virginia did not recognize the couple as being legally married. Philip T. Nash, “When Marriage Was Illegal: 25 Years Ago, a Triumph of Love and Law Over Racism,” The Washington Post, June 14, 1992, p. C5. Ibid. Peter Wallenstein, “Interracial Marriage On Trial: Loving v. Virginia,” in Race on Trial: Law and Justice in American History, ed. Annette Gordon-Reed (New York: Oxford University Press, 2002), 182. Booker, “The Couple that Rocked the Courts,” 82. Newbeck, Virginia Hasn’t Always Been for Lovers, 21; David Margolick, “A Mixed Marriage’s 25th Anniversary of Legality,” New York Times, June 12, 1992, p., B20; Booker, “The Couple that Rocked the Courts,” 79. Booker, “The Couple that Rocked the Courts,” 80. Ibid. Ibid., 80. Richard Loving was killed in a car accident in 1975. Wingfield, A History of Caroline County, 170; emphasis added. Booker, “The Couple that Rocked the Courts,” 79, 80. Ibid. Pratt, “Crossing the Color Line,” 235. Letter from Otho Nelson to Frank Speck ,October 3, 1942. Frank Speck Papers, American Philosophical Society; Letter from Mills P. Neal to Lloyd G. Carr, November 2, 1942. Frank Speck Papers; Paul T. Murray, “Who is An Indian? Who is A Negro?” Virginia Magazine of History & Biography 95 (April 1987): 227–28; “Powhatan Confederacy Reorganized,” Virginia Indians in World War I Draft, Attan-Akamik 1, no. 3 (n.d.): 1. Mildred Loving of Central Point, interview by author, July 14, 2004. Anonymous resident of Caroline County, interview by author, March 4, 2005. Because of the volatile nature of the African American and Native American identity dilemma, interviewees asked that their names not be released for fear of retaliation. Anonymous resident of Central Point, interview by author, March 5, 2005. Ibid. Bernard Cohen of Alexandria, Virginia, interview by the author, March 6, 2005. “Pair Files Suit to End State Ban,” October 28, 1964, p., 23; “Anti-Miscegenation Case Move Rejected,” October 29, 1964, p., 21; “Brief Filed On Mixed Marriages,” December 28, 1964, p., 21; “Court Won’t Rule On Mixed Marriage,” February 12, 1965, p., 17; “VA. Mixed Marriage Ban Killed,” June 12, 1967, p., 1. The Richmond News Leader. “Judge Denies Suit Against Marriage Ban,” October 30, 1964, p., A9; “Mixed Marriage Ban in Virginia Attacked,” December 20, 1964, p., A27; “Ban On Interracial Marriages Defended,” December 9, 1965, p., D18; “High Court to Hear Miscegenation Case,” June 12, 1965, p., B1; “Interracial Union Case to be Heard,” January 8, 1966, p., B4; Supreme Court Asked to Give Ruling On State Interracial Marriage Bars,” July 30, 1966, p., A17, The Washington Post; “Supreme Court Agrees to Rule On State Miscegenation Laws,” December 13, 1966, p., 40; “Excerpts From the Supreme Court’s Ruling on Virginia Ban on Miscegenation,” June 13, 1967, p., 29, New York Times. Margolick, “A Mixed Marriage’s,” p. B20; Georgia Heneghan, “The Crime of Being Married: Caroline County Woman Recalls Fight Against Virginia Law,” The Free

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Lance-Star, August 1, 1992; Lynne Duke, “Two Separated By Death,” Washington Post, June 12, 1992; Nash, “When Marriage Was Illegal,” p. C5. Nash, “When Marriage Was Illegal,” p. C5. According to a March 12, 2001, census report, only 2.4 percent of the American population took advantage of the option to identify themselves as multiracial. Many Americans who identified themselves by more than one race checked the white category and another category such as black, Asian, or American Indian. Although anyone who reported two or more races is included in the tally for each of those races when using the “alone or in combination” concept, anyone who checked a white box and some other race were counted as a minority; Neely Tucker, “Loving Day Recalls a Time When the Union of a Man and A Woman Was Banned,” The Washington Post, June 13, 2006, p., C1. Newbeck, Virginia Hasn’t Always Been for Lovers, 215; Anonymous resident of Central Point interview by author, March 5, 2005. Margolick, “A Mixed Marriage’s,” p. B20. Ibid; Michael Paul Williams, “Church Denies Entry to Couple,” Richmond TimesDispatch, March 31, 2004; Mark Holmberg, “A Church Divided Against Itself: Split Over Membership at Rappahannock Indian Church Widens,” Richmond TimesDispatch, April 5, 2004; For more on the dilemma of race, tribal membership, and the politics of state and federal recognition see Marie Anna Jaimes Guerrero, “Civil Rights versus Sovereignty: Native American Women in Life and Land Struggles” in Feminist Genealogies, Colonial Legacies, and Democratic Futures, eds. M. Jacqui Alexander and Chandra Talpade Mohanty, 101–24 (New York: Routledge, 1997); Ward Churchill, “The Crucible of American Indian Identity: Native Tradition versus Colonial Imposition in Post-Conquest North America,” American Indian Quarterly 231, no. 1 (1999): 39–67; Josephine Johnston, “Resisting a Genetic Identity: The Black Seminoles and Genetic Test of Ancestry,” Journal of Law, Medicine & Ethics 31 (2003): 262–71; L. Scott Gould, “Mixing Bodies and Beliefs: The Predicament of Tribes,” Columbia Law Review 101 (2001): 702–72.

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RESISTANCE, REDEMPTION, AND TRANSFORMATION: AFRICAN AMERICAN AND LATINO PRISONERS LIVING WITH THE HIV/AIDS VIRUS Laura T. Fishman

What does it feel like being a prisoner with HIV/AIDS infection? In a letter to The National Commission on AIDS, one prisoner wrote: I feel very lonely, rejected and I often wonder if I will ever be able to spend time with my family again. My life seems void of all passion, and it seems that the cruelest punishment that can be imposed on a person is incarceration with HIV/AIDS.1

This statement reflects a common thread that runs through the accounts of other African American and Latino male prisoners with HIV/AIDS (also known as Prisoners with AIDS or PWAs), incarcerated in the New York State prison system. To be incarcerated with AIDS is to be abandoned by and isolated from family, friends, and associates. More worrisome is the constant threat of dying alone in one’s cell. Given this, a common observation vehemently voiced by infected prisoners focuses on how they believe that no one wishes to die of AIDS in prison. Not all prisoners, however, await death passively. Many African American and Latino prisoners actively manipulate the prison environment to help them endure this life-threatening illness. Within the prison system, the greatest test of courage is choosing to live with HIV/AIDS. This chapter examines that choice and its consequences. I don’t discuss why prisoners have made this choice; rather, I show how they have made this decision by illustrating the process of making the decision and by exploring HIV-infected African American and Latino prisoners’ use of different forms of resistance to stay alive and to make their lives bearable.

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Imprisonment, especially for those with AIDS, produces so many stressors that the coping abilities of these prisoners are challenged to the extreme. Sometimes the struggle exceeds a prisoner’s ability to survive, because when AIDS is involved, the normal crises associated with imprisonment—namely, separation and loss—are compounded. AIDS carries with it a tremendous stigma, and thus, the stresses associated with the disease are more acute and complex than those associated with other lifethreatening illnesses for prisoners. The social stigma of the disease, in addition to the stigma associated with imprisonment, has a tremendous effect on a prisoner’s ability to survive. A consistent theme in the literature2 is that the emotional upheaval that a person with HIV/AIDS must face usually begins with adjusting to this stigma, but researchers have only begun documenting the conditions under which prisoners with HIV/AIDS—including homosexuals and intravenous drug users—have become stigmatized.3 So far there is some evidence that prisoners with AIDS are treated differently than the general prison population.4 This different treatment may include segregation from the general prison population, lack of programming, lack of outdoor recreation, and inadequate health care. Cathy Potler finds that inmates have commented that the prisons should get rid of “them” (read: PWAs) or that others have complained of having to “deal with scum.” The prison literature has made an extensive examination of accommodative strategies employed by prisoners within the prison system as a “total institution,”5 which is one that completely absorbs and structures the identities and behavior of actors within it.6 Surprisingly, however, almost no work explicitly deals with resistance strategies devised by prisoners. The literature on concentration camps, the most extreme form of “total institution,” provides some clues as to possible forms of resistance strategies employed by prisoners. Investigators Terrence Des Pres and Anna Pawelczynska report that to survive the Nazi concentration camps meant to resist the authorities, whose apparent intent was the exploitation of the prisoners’ labor until their premature deaths while costing the camps as little as possible.7 There is a common theme among the accounts of the concentration camp inmates: Over and over, inmates expressed their determination not to give in to the authorities. This meant living and becoming accustomed to camp conditions at a time when just staying alive was an act of resistance. Each strategy, whether accommodative or resistive, could be considered a weapon of defense. For instance, obeying rules and regulations, organizing for food, or helping other prisoners were considered acts of resistance as long as camp inmates remained committed to defying the authorities. The unspoken thought, held by many inmates, was that “to live was to resist, every day, all the time.”8 According to Pawelczynska and Des Pres, a survivor is also “anyone who manages to stay alive in body and in spirit, enduring dread and hopelessness without the loss of will to carry on in human ways.” More recent work on HIV/AIDS-infected persons complements this insight. Mary Elizabeth O’Brien and Michael Callen report that their study populations contained not only some survivors but also some longterm survivors (individuals who are beating the odds and surviving four to eight years after being diagnosed with the disease).9

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Another form of “total institution,” the slave plantation system, may provide another basis for assessing the forms of resistance used by PWAs. Knowing that they could not make themselves free, the vast majority of North American slaves struggled to lessen their suffering by attempting to improve the way they were treated.10 They resisted overtly in the form of slave rebellions and covertly in indirect attacks on the system, such as through resisting the whip, feigning illness, consciously being lazy, and employing other means of avoiding work and impeding production. Slave narratives also suggest that there were more extreme forms of resistance, such as murder, infanticide, assault, arson, theft, and abortion. Since the days of slavery, resistance has become institutionalized within the African American community and, to a lesser extent, within the Latino community. Today, both overt and covert resistance persists in the form of civil rights demonstrations, sit-ins, songs, and literature. My study examines some forms of resistance within the prison system, which, although similar to the plantation with respect to being a “total institution,” has a unique culture and response to AIDS. The forms of resistance employed by African American and Latino PWAs are described here as a means of expressing opposition to the formal and informal responses of the prison community to AIDS, as well as of undermining a prison system that they perceive as oppressive. To broaden my analysis, I posit that accommodating the prison system can be a form of resistance for prisoners insofar as it improves chances of survival and social conditions and protests the existing social order. In this study, the hope was that African American and Latino PWAs would use a variety of coping strategies whose ultimate goal was resistance and that these strategies could mitigate death anxieties, multiple stigmas, and the “pains of imprisonment.” It seems useful to distinguish which factors predispose prisoners to resist on a daily basis and to strive to be long-term survivors. The literature on persons living with HIV/AIDS within the free community provides some of the characteristics of the long-term survivors: acceptance of the diagnosis, refusal to believe the condition is a death sentence, forming a sense of personal responsibility for one’s health, perceiving an ability to cope with the condition, finding meaning and purpose in one’s life and in one’s illness, associating with other HIV/AIDS-infected people, becoming involved altruistically with other people similarly infected, and committing to living with one’s condition.11 This chapter fills a gap in the literature by focusing on how African American and Latino prisoners with HIV/AIDS in the New York State prison system employ resistance strategies to stay alive and to make their lives bearable. I found that the prisoners used a variety of resistance strategies, but the ways in which they resisted differed by the type of prison system in which they were incarcerated. METHOD The preliminary findings reported here are based on research in progress, which focuses on seventy male African American and Latino prisoners with HIV/AIDS who were concurrently incarcerated in four upstate New York correctional facilities.12 This

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population was identified by obtaining access to three maximum security prisons and one medium security prison. Within each facility, health care providers who knew the identity of prisoners with HIV/AIDS made the arrangements. These prisoners were informed of the research project, and their cooperation was requested. The study population was confined to only those prisoners who were known to health care providers and who had served at least six months of their sentence. Each prisoner was informed about the project, and his informed consent was obtained. All the men who participated in this study did so voluntarily. The participants were assured confidentiality, and all interviews were conducted in a private room.13 The in-depth interviews ranged in length from two to five hours; the length of the session depended on the health and willingness of the inmate. The interviews were structured to obtain information regarding the man’s family background, prior arrests and convictions, method of learning he had contracted HIV/AIDS, and methods for coping with HIV/AIDS. Although the interviews followed no rigid structure, an interview guide was used to ensure that the same basic topics were raised with each prisoner. Of the final study population, all seventy African American and Latino prisoners came from New York City. Thirty-eight were African American, and the remaining thirty-two were Latino.14 The majority of the men were of the working and lower classes. Sixty-seven were heterosexual intravenous drug users, and three were homosexuals. The preponderance of intravenous drug users indicates the effects of geographical location and the tendency of drug users to be arrested for crimes punishable by imprisonment. The prisoners also came from an area of New York City that has a relatively high incidence of AIDS among intravenous drug users. Most of the men had extensive criminal histories and reported that they had spent time in prison before their current incarceration. The prisoners were serving sentences ranging from three years to life and primarily were incarcerated for drugrelated crimes.15 Most had been convicted of serious crimes, such as assault, homicide, sexual offenses, or sale of unregulated drugs, and also had been previously convicted on two or more charges. In a qualitative study of this kind in which random sampling methods are not used, the question of being able to generalize the findings always arises. This researchprojection-progress explores coping in only seventy African American and Latino PWAs who selected themselves to participate in this study. Given that participation was voluntary, the final study population underrepresents prisoners who have not used the prison medical facilities and who have, perhaps, employed some coping strategies not mentioned here. However, as a preliminary exploration, the information presented here provides some important clues as to how prisoners cope with a life-threatening virus. The data collected were analyzed with the “grounded theory” and “constant comparative” procedures developed by Glaser and Strauss and Charmaz.16 Because the “grounded theory” emphasizes discovery and theory development, data collection and analysis proceeded simultaneously, so a theoretical understanding of the phenomenon was constantly revised as more data were collected. On the basis of the “constant comparative” method, information from data sources was subjected to rigorous comparisons, cross-checking, and validation with respect to the experiential frame and life space of the PWAs.

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THE PRISON COMMUNITY’S RESPONSE TO AIDS The seriousness of HIV/AIDS infections in the New York State correctional system cannot be overemphasized. AIDS is currently the leading cause of death in New York State prisons, where an estimated 10,000 of the state’s 55,000 prisoners are HIV positive. Correctional administrators are confronted with the management and prevention of HIV/AIDS and at the same time must address the needs of both the infected and the noninfected inmates. Many of the health workers and legal experts I came in contact with told me that the solution to the problem has been a travesty for PWAs. Instead of providing even nominal health care, counseling, and education for these prisoners, prison systems have set the stage for discrimination and abuse in the form of substandard medical care, denial of privileges, breaches of confidentiality, and physical and verbal abuse from correctional staff and other prisoners. The prisoners in the study population most frequently reported inequities when interacting with health care providers, correctional officers, and other prisoners. MEDICAL TREATMENT Almost all the inmates in the study incarcerated in the maximum security prison systems reported that prisons can be characterized by secrecy, denial, shame, fear, ignorance, ostracism, and poor health care. The health care, according to most of the men, is woefully inadequate and inequitable. Granted, care for the thousands of infected prisoners taxes the correctional system to the fullest, insofar as there simply are not monies available to meet basic health care demands, much less provide quality care. More troubling to these prisoners were the stigmatizing situations that they encountered whenever they went to the medical facilities for treatment. Many of them complained that health care providers subjected them to a series of unnecessary indignities, from the inattention of health care providers to breaches of confidentiality. Such indignities reinforced their debased status. As one prisoner said: I stayed at St. Claire’s for a little over a week. Before I left, a doctor just put his stethoscope to my heart and then said I was all right to go back. Listening to my heart had little relevancy for my physical condition. I weighed 99 pounds at the time. When I got back here, I complained that my mouth was so dried up that I could barely open it. I knew that the infection was in my mouth too. But no one examined my mouth nor gave me any medication for it.

According to the prisoners’ accounts, breached confidentiality was the most anxietyproducing situation that they encountered when they went for treatment. Many recalled that the most common breach of confidentiality occurred when the correctional guards stood around while nurses interviewed PWAs. If the prisoner wanted to discuss anything with them, the guards would hear. Too often, the men said, guards read medical reports they were not supposed to see. Most of these prisoners believed that the guards then passed this information around to the other guards and sometimes

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to the prisoners. Segregation of infected prisoners only occurs when they are in need of intensive medical supervision. Although in this instance that policy has public health merits, it’s still inherently stigmatizing. Segregated prisoners are denied many of the privileges afforded the general prison population, including sufficiently warm food, exercise in the prison yard, attendance at religious services, and lights on after 10 PM. They are also restricted from attending programs available to other prisoners. Prisoners living in a segregated unit feel that they are in a “leper” colony. All of these issues—the limits of health care providers, breaches of confidentiality, and segregation—discouraged many PWAs from making regular visits to the medical facility, and they conversely encouraged them to skip medications rather than endure the stigmatization. In these instances, some prisoners choose to wait until they are near death to get medical treatment, or they choose to die quietly in their cells. RESPONSE OF GUARDS AND PRISONERS TO AIDS Most prisoners reported that guards verbally harassed them or other prisoners. These guards make derogatory statements or act in an inconsiderate, disrespectful manner toward them. Prisoners frequently noted that guards told them or other PWAs: “You deserve to die,” or “Why don’t you die and get it over with?” A few prisoners recalled that guards deliberately set up infected prisoners to receive disciplinary reports simply because they were HIV infected. One said: We get harassed and confined by the guards. They’re always looking for a way to give us DRs [disciplinary reports]. Then we’re sent to protective custody and confined for 23 hours a day. During this confinement we’re not allowed to receive food packages, and they take our commissary privileges away for 30 days. We need the food package to supplement the food we’re receiving. We’re not getting adequate nourishment or getting the right vitamin supplements, and both food packages and food from the commissary can mean the difference between life and death for us.

Others within the maximum security prisons reported that they or other infected inmates had been physically abused. One said One last experience I want to tell you about. It happened to my friend, Patrick, at Clinton. He was in the lock-up block. He had heart trouble and was HIV positive. He was in his cell screaming for help. He was having heart failure. By the time the guards came to his cell, he’s dead. Now something happened. The investigators came. The neighbors try to say what happened to him. The guards came that night and beat him ‘cause he was screaming. That’s what really happened. They came back in the morning and found him dead. Clinton has wards for full-blown AIDS. Attica has an AIDS unit. I’ve heard that it happens in these wards that an officer will see you in the bed and he goes and throws a cold bucket of water on the inmate. That’s not fun. The officers believe that they are relieving themselves of another threat.

Unfortunately, the reaction of noninfected prisoners could be even more hostile than that of correctional officers. PWAs are frequently treated as lepers. They are discriminated

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against and spurned. Noninfected prisoners refuse to eat with them. They are called names and treated in a disrespectful manner. Often the study population overheard prisoners saying, “He’s got the monster!” or “Stay away from me, you got the monster.” When their health status is known, infected prisoners are ostracized and subjected to petty forms of harassment or to violence. Occasionally noninfected prisoners threaten to riot if a prisoner with HIV/AIDS is placed in their cell blocks. Some inmates have even been known to torch their cells to convince the administration to remove the infected prisoner. PWAs are more likely to worry about encountering hostile reactions from other prisoners when they are in the maximum security prisons. They report that they must continually be alert to possible hostility and violence from fellow inmates. As another prisoner wrote to the National Commission on AIDS: Having AIDS in prison is an endless vigil to insure that you receive the medications and treatment that you need. It is dealing with medical personnel who get a thrill out of putting your life and well-being in jeopardy by revealing in sadistic and sinister ways that you are one of the “accused.” It is being subject to assaults and “burn-outs” (having your cell set on fire) by other prisoners. It is living with a debilitating fear that someone will find out that you’re dying of AIDS and kick you. It is a horrible way to die.17

Within the medium security prison system, AIDS is treated as a more ordinary event, but prisoners in the maximum security prisons appear to have little idea how to respond to PWAs in a nonstigmatizing manner. AIDS education in these institutions overall is woefully inadequate, and in the maximum security systems it is practically nonexistent. Without education, however, prisoners will continue to act in a hostile and even malicious manner toward those with HIV/AIDS. In the medium security prison in the study, in contrast, there was an extensive AIDS education program that included peer counseling and peer education. Here AIDS was no longer seen as a catastrophic event, and prisoners with HIV/AIDS reported that they did not suffer the shame or stigma that they might have experienced in other facilities. THE CULTURE OF SILENCE As a consequence of the fear of rejection, abandonment, or physical harm, prisons have developed a “culture of silence” surrounding the issue of AIDS. This is a response to the social and racial stereotypes that surround AIDS. Prisoners said that the dominant reactions of others to the situation of PWAs was to act cool, indifferent, or unresponsive. Aside from an occasional derogatory statement, the majority of prisoners continued to absorb themselves in their own activities, keep their mouths shut, and express little concern for those whose illness was readily apparent. These accounts indciated that the culture of silence that emerged was based on denial and fear. This situation can best be characterized as presenting a “closed-awareness context,”18 in which one participant does not know the true identity of the PWA. Therefore, the stigmatized will be challenged to create a “normal” identity while

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playing down a deviant identity. Within the prison community, the closed-awareness context is maintained as long as the unaffected prisoners do not know the status of the PWAs, but this culture can only be maintained if prisoners with HIV/AIDS allow it to exist. If they keep their status to themselves, then the other prisoners can continue to maintain “normalcy,” thereby reducing their fears of contamination. Another prisoner with HIV/AIDS wrote to the National Commission on AIDS about the effects of the lack of AIDS education on the various prison ethnic groups: If they know that you have AIDS, then they look at you as inept and weak. This view is most common among the Caucasians. The Blacks are the most ignorant about AIDS. The Hispanics are the most concerned and build some degree of solidarity around AIDS. They help those inmates and are supportive of those inmates who have AIDS. They come to each other’s aid. On the other hand, the whites would rather burn you out of your cell if they know that you have AIDS. We’re dealing here with people who are morally corrupted. Their lack of human concern has been taken away from them. They just say that you have to do for yourself and the hell with other people.

African American prisoners are more likely than Latinos to fear disclosing their status; most reported that they have not disclosed their status because they fear physical harm, stigma, abandonment, and rejection as a result. One said: A lot of people don’t want to be looked at as gay or that they have indulged in homosexual activity. They would rather be considered an IV drug user. They fear that other people will look at you like trash. I have to take care of myself and am not concerned how they see me. But around here there is a lot of worry about how people see you.

MANAGING THE CULTURE OF SILENCE Exposure to an environment that many prisoners described as physically threatening, hostile, and harsh encourages many PWAs to believe that they are heading toward a premature death that will cost the state very little. Repeatedly, prisoners, especially in the maximum security prisons, reported their belief that the goal of the New York State Department of Corrections response to AIDS is the physical destruction of infected prisoners. As one maximum security prisoner with AIDS reported: A large number of men are diagnosed as HIV positive here, and the numbers are always increasing. But the administration takes the view, “Let them die!” I can hear some of them calling out that they are dying in their cells. It is a terrible thing to hear and not to be able to respond—to be powerless behind the bars to respond. If other inmates also call out for the guards and claim that some man is dying, they’re beaten down.

Some even ascribed this state’s inaction to a genocidal plan to eradicate people of color, especially those from the lower classes. Within this context, living with HIV/AIDS in the prison environment created some unique responses to the men in this study group. They expressed uncertainty about how they would die. Some reported that each morning they felt acute anxiety about how ill they would be that day, how they would survive from day to day, or

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how much longer they could expect to live. They expressed uncertainty about whether they would be able to live with dignity within the prison walls and whether they would be able to return to their communities to die. One man said: No one wants to die alone. I know a few inmates who have died here, and they do it alone. I can empathize with what they were feeling. Yes, many have died alone here. Their existence meant nothing. I saw a guy, four months ago, he lost his will to live. As much as I tried to pick him up, he lost that will to live. This guy’s family had sent him a couple of bags of candy. I got sick and they sent me back to the hospital. As I left, I said to the officers, “Can I say hello?” They said, “No.” The day after I came back, he passed away. I heard the officers say, “Well, he’ll never eat that candy.” They did not say, “That’s too bad.” That’s why I do not want to die here. I want to be buried with full military honors, and my wife wants to be buried next to me. I want to make her feel good.

And another man said: I’ve seen plenty of people die in jail from AIDS, stab wounds, OD’ing. They take the body immediately out of the jail, and then the officers let the prisoners take anything they like out of the cell of the dead prisoners. It’s horrifying to see these scavengers run in and take everything. They clean the cell out. The police don’t care. I’ve seen all that over and over again. Because of this I don’t want to die in jail and have them treat me like that. I don’t want to be treated like this. It’s a hell of a way to die. They don’t even have a service for the dead inmate. Friends of the inmate can give the name of the dead inmate to the priest and he will mention it during the service. You die truly alone in prison.

Almost all prisoners noted that they sought control over these uncertainties from within the “silence.” A common response was to affirm life and to affirm the goal of staying alive until they were released from prison. The strategy they used most was resistance in response to the silence. That is, they were likely to draw upon culturally specific notions in choosing their particular forms of resistance. Resistance was accompanied by the prisoner’s concept of himself, which progressed from “tainted by HIV/AIDS” to “living with HIV/AIDS” to avowal. These transformations dictated the form of resistance directed toward the prison system. To live with AIDS in that manner demanded a transformation of social identity that inadvertently or overtly thwarted and obstructed the dictates of the silence surrounding HIV/AIDS: Affirmation challenged the silence. To commit to resistance initially meant turning from passivity to action and from horror, despair, and depression to the daily business of staying alive. Those who lived longer did so only by cheating the prison authorities. The opposite—to withdraw, hide one’s illness, or feign normalcy and therefore avoid medical services as well as other HIV/AIDS-infected prisoners—ultimately meant death. Resistance was the only hope of survival. Prisoners reported that they employed a variety of resistance strategies to make their lives bearable, to relieve their anxieties about death and dying, and to prolong their lives. The most commonly used strategies were going

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public, participating in PWA support groups, active resistance, and going on a spiritual mission. GOING PUBLIC Numerous African American and Latino prisoners infected with HIV/AIDS generally disclose their status soon after diagnosis. It is not an easy decision, but nevertheless, most choose to reveal their condition. These prisoners use affirmation as their technique, and most choose to attack the roots of the AIDS stigma directly. When the men make their disclosures, they usually provide cues as to how others can continue to relate to them as “normal.” Only a few prisoners have no choice but to go public. Those in the AIDS ward of the maximum security prisons have been publicly recognized, though not by choice. Most of the men who had no visible signs of illness were likely to only partially disclose their status. These men said that they selectively informed family members and a handful of trusted prison associates. They minimized contacts with those outside this circle because they believed that other people were likely to be hostile and rejecting. Latinos were more likely than African Americans to disclose their illness to a small network of trusted friends and family members because they wanted to ensure some insulation from potentially threatening interactions and to receive the support that they needed. They said they experienced some relief from the stigma and, in turn, some relief from their fears about the illness because of this disclosure. More specifically, the act of going public helped ease the pains of existing with a life-threatening illness. That is, on disclosure, they could draw on their associates for physical protection, assistance whenever ill, and the provision of food to supplement their diets. They also would more freely avail themselves of medical services whenever needed without fear of rejection by their associates. Some HIV/AIDS-positive inmates actively embraced their identity. Latino prisoners were more likely than African American prisoners to participate in what is called “full embracement.” As Snow and Anderson contend, embracement refers to “verbal and expressive confirmation of one’s acceptance of and attachment to the social identity associated with a general or specific role, a set of social relationships or a particular ideology.”19 Among the prisoners, embracement assumed the form of pronouncing that they were living and thriving with the illness, and it became a mechanism with which to fight back. It meant becoming exactly what they believed the prison administration did not want and distancing themselves from the role of AIDS victim; that is, being ready to lie down and die in prison. By telling the secret, the men ceased being victims of the disease and of an administration that could reduce them to a state of powerlessness. By affirming their status, they felt that they had come to terms with their illness, risen above their victimization by refusing self-pity, and kept their dignity intact by withdrawing. Going public brought relief in two ways. First, full or partial disclosure meant moving out of secrecy and discarding the mask that burdened them. In most cases,

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prisoners reported few instances of rejection, abandonment, or hostility from friends or acquaintances. Second, they now had the freedom to take advantage of the treatment and medication offered in prison infirmaries, to arrange for AIDS counseling, and to maintain involvement in PWA support groups. In this sense, disclosure had a direct bearing on prisoners’ health, longevity, and sense of well being. In contrast, keeping the secret prevented prisoners from making full use of the available medical facilities, educational materials, and counseling services. The need to avoid stigmatization placed these men at high risk of dying earlier than those who availed themselves of social support and medical treatment. As one prisoner with HIV/AIDS observed: Then there is what I call the willful type of dying. By willful, I mean a guy who is infected, but he does not want anyone to know about it. He even avoids going to sick call. Sometimes these guys have a nervous breakdown, and then we know. Sometimes, there are no obvious signs that they have AIDS. Some of these guys die alone in their cells.

This self-imposed secrecy placed a heavy burden on those who were “living a lie.” Having to field questions and remarks from friends who had a mistaken notion about what was happening in their lives or who had become suspicious about their health could create considerable strain. The secretiveness itself could cause severe emotional stress for prisoners with HIV/AIDS, who already expressed considerable hopelessness and depression from having the illness itself. The literature on HIV/AIDS notes that depression, despair, denial, and a minimal or absent system of social support are associated with less effective coping behaviors and shorter survival times. PRISONERS WITH AIDS SUPPORT GROUPS Kent L. Sandstrom observed that among the gay men infected with HIV/AIDS who participated in his study, full embracement of the HIV/AIDS identity was most likely to occur when his study population regularly attended support group meetings.20 Prisoners experienced a similar effect when they attended AIDS-related support groups. Two of the study maximum security prisons and the medium security prison had some form of support group, ranging from a well-organized, popular, and wellattended support group in the medium security prison to a new group in a maximum security facility whose membership consisted of more staff than prisoners. Prisoners were most likely to join these groups within a few months of their diagnosis and to continue attending meetings on a fairly regular basis. In general, many prisoners joined these support groups to address the crises elicited by their illness and imprisonment and to learn how to prolong their lives until they were released. Most prisoners reported that they perceived their group as the central focus of their struggle for survival within the prison environment. By educating each other about the virus, medications, and kinds of treatment they needed, many came to

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understand that to live was to resist the virus and the expectation of an early death. By providing socioemotional support as well as formulas for living “positively,” these groups helped their members cope with their “spoiled” identities and worked toward changing their attitudes. Membership in PWA support groups, however, could both heighten stigma and reduce stigma. Stigma is heightened insofar as membership increases visibility and makes their disease status public. In contrast, they reduced the burn of that stigma by being in the group. AIDS becomes a much less salient factor in interactions among group members, which contrasts with interactions that take place within the prison community, in which the HIV/AIDS status can be a determining factor. Although uninfected prisoners may be aware of the men’s disease, infected prisoners rarely share their feelings and fears with them freely. All are wary of talking extensively in the prison milieu, where ostracism, avoidance, and violence can result. Another benefit of the support groups is shared contact with others who are coping with a similar life crisis. Many prisoners benefit by reaching the stage of acceptance by participating in support groups. They experience an identity shift and learn to accept the limitations that HIV/AIDS imposes on them because of the life-threatening aspects of the disease. They come to realize that they can still manage their lives by reacting to the disease with more reason than emotion. This prisoner illustrates some of these points: Coming here helped me to face up to this disease and made me face up to my substance abuse. I realized that my drug problem is out of control. Now I use the disease to reinforce my sobriety. The disease works to keep me straight. I use it to keep me motivated. Pat (a health practitioner) told me about the support group. At first it sounded OK. But I wasn’t too keen about it. I was not ready to let people know about it. I figured that I’d be shunned. There is so much ignorance of people about this disease. I was afraid that it would make me an outcast. I wanted to be accepted here. I was not ready to come out with that. Then I found out that Miguel and Jesus and I had it. They were in my house. I decided that it was now or never to come out and not keep it all bottled up inside of me. Jesus then told me about the group. I just sat in the group the first day. Everybody was so positive and kicking their feelings. I identified with a lot of the feelings that were being expressed. I saw that this could provide me with a place where I could go and vent my frustrations. We were helping each other. Now I see that we’re a group of warriors who are planning strategy of how to fight this disease. I now believe that I have someone to back me up so I won’t fall. The group helped to really look at the disease for what it is. I have learned how to live with this disease.

The findings of this study indicate that going public is more likely when PWAs have access to support groups and that attendance has actually caused some PWAs to go public. However, some prisoners also ascribed their decision to “tell the secret” to the simple fact that incarceration makes it impossible for them to continue their fast-living lifestyles. Until free of the obsessive preoccupation of drugs and criminal activity, the men said that they had little time to look at their lives. When they finally do have time to think, it motivates them to want to live, to face their families, to explain their illness and its cause, to release some guilt if they must, to tell their families that they

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love them, and to hear such words in return. Support groups reinforce these hopes and decisions. RESISTANCE AND TRANSFORMATION The AIDS-related support group in the medium security prison provided one of the strongest means of survival for the men in the study, and to a lesser extent the group affected the men in the maximum security prisons. The men noted that they received some education about the disease and learned a secret language of solidarity—a way of articulating oppression, a means of resistance and a cry of hope. Participation in support groups exposed the members to alternative definitions of the reality of AIDS and to an ongoing system of identity construction. Prisoners who attended were more likely than those unaffiliated prisoners to gradually affirm and embrace an HIV/AIDS identity. Some unaffiliated PWAs came to a similar identity transformation as a consequence of their association with HIV-infected peers who encouraged them and gave them emotional support. Within the constraints of the various prison systems, HIV-positive and AIDSinfected prisoners recalled that they were able to move from perceiving themselves as dying to constructing “a wellness self-identity.” Given this change, the most common response to illness was to enthusiastically avow: “I’m HIV-positive and living a positive life.” Unlike HIV/AIDS-infected people on the streets, prisoners employed this identity construction because they perceived that they not only could control the disease but could also control the outward circumstance of their potential abuse. This acknowledgement entailed recognizing the existence of the virus in their bodies as well as taking action to cope with the disease. To survive as long as possible, most prisoners adhere to a specific action plan that they shape to fit the long-term stresses of the disease and the prison system and the potential destruction that comes with prolonged incarceration. A diagnosis of HIV/AIDS can push a prisoner’s adaptive strategies to their limit. When they aspire to be long-term survivors, the men are committed to living and to having a new sense of purpose in life. In most cases, the men decided that they were willing to draw on every reserve of strength that they possessed and to take advantage of every resource that could assist them in the business of staying alive. Many reported that they attempted to transform the frustration, anger, and rage that they normally would have directed at the guards and medical practitioners into positive feelings and attitudes. All believed that a positive attitude was crucial in the fight for their lives. As one medium security prisoner reported: I look forward to learning more about the truth about AIDS. What interests me is how I got it and how I’m living with it. I don’t think about it and I pray to the good Lord that he keeps me strong. I keep positive. I know that I am a fighter. I believe that I will live to see a cure and to be cured. As long as I am positive, I’ll be all right. All the negatives I push away. I do not think about getting sick. If I do get sick, then I worry how my loved ones will take it. I’m positive though. I’m cheerful, moving about, talking and into a lot of things. I take to reading. When I get depressed, I pick up a book and read it. That’s good for me.

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Within this context, many prisoners assured themselves that they were ready to “do their own time” now. They made commitments to leading a “conventional prison lifestyle.” That is, they emphasized staying out of trouble, avoiding confrontations with other prisoners or prison staff, finding a job within the prison or getting an education, and last, but most important, assiduously giving the appearance of conforming to prison rules and regulations. They made maximizing the satisfactions procurable within the prisons the goal of their daily lives. A maximum security prisoner stated: I think that some people give up. They figure they are going to die and let themselves go. I’m not about that. I’m going to fight it. It’s just so negative here. I do everything to keep off the negative. I conduct a choir here. When I go to the yard, I try to socialize. I’m growing a vegetable garden. Some of the guys have flowers. I work in the print shop. I go to Bible studies. Sunday is church.

Prisoners at this emotional stage also gave serious consideration to information that urged them not to abuse their bodies with drugs and alcohol. They had been repeatedly informed—usually at support group meetings—that continuing to drink and use drugs would stress their immune systems. With this information in mind, most PWAs stopped this destructive behavior. The inmates also took other remedial steps to stay out of trouble. In many cases, prisoners avoided prison associates who were involved in dangerous or quasi-legal activities. Two transvestites reported that they tried to avoid risky sexual behavior. One noted that he now maintained monogamous relations with one boyfriend who was located in his cell block. Another complained that he had to continuously avoid all encounters that could lead to sexual activities. All attempted to live in virtuous moderation by eating some nutritious food every day, getting plenty of sleep, dressing warmly when necessary, and reducing the distress of their lives. However, it must be pointed out that living in moderation is relatively easy within the prison environment. For instance, prison provides housing that is often far better than the homeless shelters where some prisoners had been living. It furnishes three meals a day, medical care (although considered to be bare bones treatment), and clean clothes. Prison could be a more stable place to live because the factors that contribute to drug use and criminal behavior are tightly controlled. One prisoner responded to the question of whether it was easier or more difficult being HIV positive in prison: I would say as far as health wise and taking care of myself, being in prison was easier. Because there was more of a routine, you did everything by routine. You know, you ate by a routine, you worked on a routine and you slept on a routine. And you have weekends off. I retained a lot more weight and I felt better. Being on the street I like it even more because now I’m not limited. I have mobility. I can go and come as I please, but I don’t eat at any set times. And what I eat isn’t always the healthiest things for me to eat. I like it on the streets because I have a bigger say in what happens to me medically. And where once the nurse could have mandated you take this shit, and I had to take it and they wake you up in the mornings and see that you take it. But now, I feel as if I

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have some say in what happens to me, and if I don’t like this doctor’s opinion I could go get someone else’s. It’s just like a two-sided coin, you know. I mean I don’t like being told what time to go to bed, when to wake up, and when to eat. But that’s what happened in prison. I don’t like being restricted to the same area for two years, but for health reasons it’s definitely a lot better because it made me get into a routine. It made me take proper care of myself. It made me get into the mold where I was accustomed to eating regularly. I didn’t eat what the prison cooked for me. I had a cooking team and we ate three square meals a day.

Incarceration, especially in the medium security prison, grants many prisoners the opportunity to control their drug habits, to get a grip on dealing with their HIV infection, and to live in moderation. Living in moderation also led prisoners to assume an accommodative stance toward the prison system. They were more likely to be cooperative with fellow prisoners and correctional staff, and they were less likely to be intransigent, to break rules, and to push authority to the limits. In general, prisoners believed that by staying out of trouble and by living a moderate and healthy life, they would maximize their chances of eventually getting out of prison undamaged, both physically and psychologically. Another theme of survival in the prisoner’s testimony was the importance of selfeducation about the virus, especially information that could lead the prisoners to creating a treatment regime for themselves. When no AIDS-related support groups were available, prisoners were forced to depend on the material about AIDS/HIV located in the prison libraries and on whatever information about HIV/AIDS they received from family members or fellow prisoners. As one prisoner said: I was worried about dying. I worried about going to sleep and not waking up no more. It’s frightening at that point. It was. I hear on the news that a lot of people die of AIDS. I’m a victim too and I will die. Then I realized that I could help myself. I started reading pamphlets. The nurses gave me the medication that I needed. I started to learn about the medication. I began to exercise and eat a lot. I tried to keep my mind busy. I read a lot and listened to the radio. The pamphlets helped me a lot.

A prisoner’s ability to create a treatment regimen depends on the depth of information they can acquire about the illness and on the willingness of prison health care providers to include the prisoner’s opinions. Many men asserted angrily, especially in maximum security, that prison health care providers did not enthusiastically allow them to be collaborators, nor did they allow them to assume responsibility and control for their own health care. Instead, they were discouraged from questioning their caretakers’ competency, to make inquiries as to the rationale for medication, or to make suggestions about their treatment. Prisoners who did such things were often deemed “troublemakers,” and in many cases they received less adequate treatment or were given disciplinary reports that made them lose some privileges. Within the medium security prison, a number of the study group members created a personal HIV therapeutic regime that consisted of regularly utilizing the prison medical services but also included some holistic health remedies. However, the

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prison system permitted only a limited number of holistic remedies, including prayer, meditation, guided imagery, affirmations, and general health promotion programs like nutrition and exercise classes. Because most of the prisoners complained that prison food was substandard and sometimes inedible, they supplemented their food, cooked for themselves, and cooked and shared food with their associates. Some expressed interest in acquiring vitamins to supplement their holistic program, but the prison administrators denied these requests. Inmates were allowed only vitamin C and multivitamins. Most men reported that they conscientiously consumed these vitamins. A dominant theme emerged from the accounts of these HIV/AIDS-infected prisoners: Participation in support groups exposed its members to alternative definitions of the reality of AIDS and to an ongoing system of identity construction. They determined that the goal of the prison administration was to save money and that adequate treatment of HIV/AIDS strained the prison’s hard-pressed budgets, which is why the administration did not permit peer AIDS education in maximum security prisons and discouraged PWAs from educating themselves or from making demands about their treatment. Ignorance of the disease could lead to the speedy and efficient death of the PWAs. The prisoners argued that if the prisons provided a comprehensive AIDS education program, it would give them crucial knowledge to prolong their lives, and thus cost the state monies it did not have available. THE SPIRITUAL MISSION Some African American and Latino prisoners living with HIV/AIDS resisted outright the AIDS-related stigma and the culture of silence. Their resistance assumed the form of social activism and a commitment to lifting the oppression of prisoners affected by the AIDS stigma. According to prisoners’ accounts, there are two components to this activism: ideology and altruism. Kent L. Sandstrom’s treatment of the transformation to AIDS-related identities among gay men provides some clues to the process prisoners undergo.21 He said that among gay men infected with HIV, an ideology has emerged that assures individuals that what they do on a continuing basis has moral validity. One of the dominant interpretations of AIDS highlighted the spiritual meaning of the illness. The African American and Latino prisoners who adhere to this ideology transformed AIDS from a “curse” to a “blessing,” which provides a liberating rather than a constricting form of identity. A prisoner illustrated this point: I was a slave once I got arrested. I was not worth a cent on the street but once I came inside, I was worth $35,000 or $42,000 a year. There is a bounty on you as a black man. They see you as a criminal so they snatch you and catch you. I get them extra money because they have to work overtime. They get extra money because I can’t make bail. They make extra money feeding you slop. The city gets in on it. I go to court and cop out and the state makes money. You have to pay for the court proceedings—for the papers—or they send you to a max joint. You work for nothing. You’re a slave. We clean up their communities for them—clean houses, parks, We have no right and no liberty. . . .

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Are you going to continue to abuse yourself and your family and contribute to others’ children? I was told that slavery is legal as long as you’re a convict. I looked at this hard. I said to myself that I will no longer be a slave. I will not earn Mr. Charlie’s money. In the meantime, I destroy my kid, my wife and my family. I feel the fact that HIV is a blessing—that it has reinforced in me the decision not to be a slave. It is a blessing in my life. I know that I am going to die. Not necessarily tomorrow. I will live until I die. I will live clean and sober.

In some cases, these prisoners thank God for giving them a sign that it is urgent to turn away from a life of sin and pleasure. A few others, especially those incarcerated in the maximum security prisons, reported that they returned to the religious beliefs they had when they were growing up. Some turned to the Muslim religion. The inmates insisted that these beliefs have been the sustaining force behind their changing behaviors and aided them in accepting both the disease and incarceration: I mainly read the Body Positive magazine. I eat what I can. I work out a little bit. And I don’t think. That’s how I cope. Every now and then Satan says, “You’re going to look like all those other guys who have AIDS in a few years.” Something frightening like that. I’m going to be all skin and bones and look like death. I see this image in my sleep. I wake up and the Devil gets on me. I can feel it. I’m not going to let this bother me about HIV. I have some help. I have God. I believe that God can do anything if my faith is strong enough. I will continue to be here. The doctor says, “You amaze me. You’ve had it for so long and nothing is wrong with you.” I told him that I’m doing nothing. It’s God who’s doing it.

Some prisoners, especially members of the AIDS-related support group within the medium security prison, reported that all aspects of their lives became associated with their HIV/AIDS status. Being a PWA thus became a master status and a valued career. These prisoners highly valued altruism and resistance. Within the constraints of the prison system, these men found themselves organizing workshops on AIDS and regularly delivering speeches to the prison population and staff. They placed a premium on disseminating information about AIDS and promoting a level of awareness in the prison community to inhibit the transmission of the illness as well as undermine the AIDS-related oppression prevalent in these facilities. In one facility, a small group of prisoners was actively committed to providing information to the various populations and to encouraging the administration to implement HIV/AIDS support groups, AIDS training, and peer education. They also advocated a change in health care policies and in the cultural beliefs related to HIV/AIDS infection. All of these men perceived themselves as altruistically inclined activists. As such, they were on a “mission” so important that they barely had time to eat and sleep. Their lives were totally focused on bearing the message of safe sex and that AIDS is not a death sentence. They strongly believed they were saving lives. For them, to educate was to break the silence. It was an active challenge to subvert those prison administrators that they could not change. Resistance reinforced their sense that they were alive and empowered:

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Some of the inmates knew I had it. They eventually know anyway. I helped three or four of them. They saw me go to the infirmary and they asked me for information. I made no declaration unless it was necessary. And more and more inmates came to see me. The guys would say that others should go see me. “He can set you straight because he has the ‘monster’ and he knows.” I get respect from them. I got a paralegal degree and I knew the law. . . . I was three months into the situation and I kept thinking about AIDS. I decided to write a brochure and give information about AIDS for people in prison. I wanted to write it for blacks and Hispanics. The AIDS Institute was supposed to provide services. They were responsible for educating us. They were doing that. The AIDS Institute was not aggressively active. They had a Prison Initiative Program, which was supposed to go into prisons and do AIDS outreach. They spoke of PCP, also Angel Dust. The guys thought that they could get AIDS from PCP (pneumonia). We have thousands of prisoners dying of AIDS. They do not get any prisoners to write a script about AIDS. They just do bullshit, and I wonder who they are writing for when I receive their brochures. The majority of prisoners are functionally illiterate. Something has to be done. I thrive on challenges, so maybe I should write brochures. I made a list of all the questions they asked. All I had to do was provide the answers. I had access to a computer. I ran the Duchess College for the administration—in prison. I had a copier and paper available too. I look at the project. I analyze it and draw up a blueprint and modify as I go along. I start the brochure. I addressed everything and gave the inmates an education. The most important thing they need is an education to survive this disease. Once you’re educated, the disease cannot hurt you anymore. I wanted to shape the will to live. The will to live is almost like a candlelight, and when things get tough, it’s like moving to a window and the breeze will snuff it out. I wrote the brochure. I wanted inmates to have a will to live. Even prior to administration approval, I started circulating it. Any inmate who tried to do outreach concerning AIDS became an administration problem. And you have no legal recourse with the administration. The warden has the right to send you to another prison. They can transfer you out. Here when they label you an administration problem, it’s more cost effective to let the prisoner die. Let them die! It’s not the problem of the administration. They will die anyway than to give them care. It costs too much.

There are some benefits to altruism and resistance. Before contracting an AIDSrelated infection, many of the inmates had felt rejected. They felt that they had participated in some perhaps heinous crimes and, in their pursuit of drugs or money, committed terrible acts against their fellow beings. In prison, many felt further diminished. Ironically, their stigmatized AIDS diagnosis provided them with an opportunity for social altruism. According to some of these men, it offered them a sense of uniqueness and expertise that was positively valued in certain groups within the prison environment. The notion that they were on a “special mission” also appears to be associated with a more positive adjustment within the prison milieu. For those who carried a death taint, it helped them feel a greater sense of mastery and self-worth by giving their condition a more positive meaning. Moreover, this idea of a “special mission” provided some prisoners with a framework by which to moralize their activities and their continuing lives.

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The final benefit is that by accepting their status, prisoners can reaffirm hope that in the future a new medication will be found or a breakthrough will cure the illness. Hope kindles the desire to fight, to not let the prison destroy them, and to get out alive. Hope can mean to aspire to living a real life again. CONCLUSION The findings presented here emphasize the tremendous effect of going public on the lives of HIV/AIDS-infected African American and Latino prisoners. This study demonstrates that although AIDS was identified about sixteen years ago, in 1981, the AIDS/HIV stigma continues to exert profoundly negative personal consequences for prisoners living with the illness. At the same time, prisoners have been making some positive gains by educating other prisoners and prison staff, trying to raise the public consciousness regarding AIDS, and devising positive coping skills to effect change as well as to lengthen their lives so that they can be released. Although this study documents the difficult challenges related to living with HIV/AIDS within various prison systems, it also points out the affirming experience of resistance. Whereas the culture of silence encourages prisoners who are infected to hide, the transformation of one’s identity and the participation in various forms of altruism and resistance can be posited as an alternative and positive course of action. The findings presented here tell us that the prison society does not encourage PWAs to take initiative in their quest for survival. The dehumanizing forces and the harsh conditions of the facilities warranted the rebelliousness among infected prisoners. Many came to be active in forms of resistance, such as going public with the news of their infection, joining PWA support groups, rearranging their prison lifestyles, and last, being advocates for HIV/AIDS. Within this context, the findings point out that the employment of such forms of resistance is believed to prolong lives as well as to undermine the oppression of the prison system. Finally, the findings strongly indicate that resistance can assume many forms within the constraints of the prison systems. Not every situation, however, affords the chance to give open battle or even to make a passive protest. Under these circumstances, the New York State prisons are more likely to encourage accommodative strategies. Within the limitations set up by the prisons, men choose their time and place to “bring the word,” to espouse the ideology of living with AIDS positively while outwardly adapting to the prison systems. Implicit here is that the struggle to resist the perceived intent of the prison system (to bring about the speedy deaths of HIV/AIDS-infected prisoners) leads to commitments to resist in its simplest forms. “I won’t give in,” means nothing more than to try to survive, to try to accommodate to conditions as they are. It means eating the prison food regularly if one cannot supplement one’s food. It means conforming to prison rules and regulations, trading an intransigent style of behavior for a behavior that reflects a commitment to “doing time.” To survive means to accommodate by using one’s spiritual orientation to sustain oneself in the face of a life-threatening illness and to use it as a foundation for educating and empowering others. To survive is simply to resist.

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NOTES 1. Written testimony by a prisoner incarcerated in a New York State prison was submitted to Judith Greenspan, the National Prison Project, American Civil Liberties Union Foundation. This testimony, along with other prisoners’ testimonies, was presented to the National Commission on AIDS (1989). 2. See Michael Callen, Surviving AIDS (New York: Harper Collins, 1990); G. H. Christ and L.S. Wiener, “Psychosocial Issues in AIDS,” in AIDS: Etiology, Diagnosis, Treatment and Prevention, eds. V. T. DeVita, S. Hellman, and S. A. Rosenberg, 275–97 (New York: J. B. Lippincott, 1985); S. F. Morin, and W. F. Batchelor, “Responding to the Psychological Crisis of AIDS,” Public Health Reports 99 (1984): 4–9; Mary Elizabeth O’Brien, Living with HIV: Experiment in Courage (New York: Auburn House, 1992); K. L. Sandstrom, “Confronting Deadly Disease: The Drama of Identity Construction Among Gay Men with AIDS,” Journal of Contemporary Ethnography 19 (1990): 271–94; Rose Weitz, “Uncertainty and the Lives of Persons with AIDS,” Journal of Health and Social Behavior 30 (1989): 270–81; Rose Weitz, Life with AIDS (New Brunswick, NJ: Rutgers University Press, 1990). 3. C. Potler, AIDS in Prison: A Crisis in New York State Corrections (New York: Correctional Association of New York, 1988); J. M. Olivero, “The Treatment of Aids Behind the Walls of Correctional Facilities,” Social Justice 17 (1990): 113–25; M. R. Kowalewski, “Double Stigma and Boundary Maintenance: How Gay Men Deal with AIDS,” Journal of Contemporary Ethnography 17 (1988): 211–28; S. Magura, A. Rosenblum, and H. Joseph, “Aids Risk Among Intravenous Drug-Using Offenders,” Crime and Delinquency 37 (1991): 86–100; C. B. McCoy and E. Khoury, “Drug Use and the Risk of AIDS,” American Behavioral Scientist 33 (1990): 419–31. 4. A. M. Cusac, “The Judge Gave Me Ten Years: He Didn’t Sentence Me to Death,” in Prison Nation: The Warehousing of America’s Poor, eds. T. Herivel and P. Wright, 195–204 (New York: Routledge, 2003); J. M. Olivero, “The Treatment of AIDS Behind the Walls of Correctional Facilities,” Social Justice 17 (1990): 113–15; C. Potler, AIDS in Prison: A Crisis in New York State Corrections (New York: Correctional Association of New York, 1998); M. Welch, “Social Junk, Social Dynamite and the Rabble: Persons with AIDS in Jail,” American Journal of Criminal Justice 14 (1989): 135–47; M. Welch, “Person with AIDS in Prison: A Critical and Phenomenological Approach to Suffering,” Dialectical Anthropology 16 (1991): 51–61. 5. A “total institution” is one that completely absorbs and structures the identities and behavior of actors within it. See E. Goffman, Asylums: Essays on the Social Situation of Mental Patients and Other Inmates (Garden City, NY: Doubleday, 1961.) 6. R. T. Davidson, Chicano Prisoners: The Key to San Quentin (New York: Holt, Rinehart, and Winston, 1974); T. J. Flanagan, “Lifers and Long Termers: Doing Big Time,” in The Pains of Imprisonment, ed. R. Johnson, 115–45 (Prospect Heights, IL: Waveland, 1988); J. Irvin, The Felon (Englewood Cliffs, NJ: Prentice-Hall, 1970); R. Johnson, Hard Tim: Understanding and Reforming the Prison, 2nd ed. (Belmont, CA: Wadsworth, 1996); G. Sykes, The Society of Captives (Princeton, NJ: Princeton University Press, 1958); C. M. Terry, The Fellas: Overcoming Prison and Addiction (Belmont, CA: Wadsworth, 2003) 7. Terrence Des Pres, The Survivor: An Anatomy of Life in the Death Camps (New York: Pocket Books, 1976); and Anna Pawelczynska, Values and Violence in Auschwitz: A Sociological Analysis (Berkeley: University of California Press, 1979).

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8. Pawelczynska, Values and Violence in Auschwitz, 127. 9. M. Callen, Surviving AIDS (New York: Harper Collins, 1990); M. E. O’Brien, Living with HIV: Experiment in Courage (New York: Auburn House, 1992). 10. J. W. Blassingame, The Slave Community: Plantation Life in the Antebellum South (New York: Oxford University Press, 1972); P. D. Escott, Slavery Remembered: A Record of Twentieth-Century Slave Narratives (Chapel Hill: University of North Carolina Press, 1979); L. Fishman, “‘Mule-Headed Slave Women Refusing to Take Foolishness from Anybody’: A Prelude to Future Accommodation, Resistance, and Criminality,” in It’s a Crime: Women and Justice, 2nd ed., ed. R. Moraskin, 31–50 (Upper Saddle River, NJ: Prentice Hall, 2000); E. Fox-Genovese, “Strategies and Forms of Resistance: Focus on Slave Women in the United States,” in Black Women in American History: from Colonial Times Through the Nineteenth Century, vol. 2, ed. D. C. Hine 409–31 (Brooklyn, NY: Carlson); E. D. Genovese, Roll, Jordan, Roll: The World the Slaves Made (New York: Pantheon, 1974); M. E. Obitko, “‘Custodians in the House of Resistance’: Black Women Respond to Slavery,” in Women and Men: The Consequences of Power, eds. D. V. Hiller and R. A. Sheets, 256–69 (Cincinnati: University of Ohio Press, 1977); J. C. Scott, Domination and the Arts of Resistance: Hidden Transcripts (New Haven, CT: Yale University Press, 1990); J. C. Scott, Weapons of the Weak: Everyday Forms of Peasant Resistance (New Haven, CT: Yale University Press, 1985). 11. M. Callen, Surviving AIDS (New York: Harper Collins, 1990); M. E. O’Brien, Living with HIV: Experiment in Courage (New York: Auburn House, 1992). 12. It had been decided to restrict the study population to prisoners who are incarcerated in those upstate New York correctional facilities within three hours drive from Burlington, Vermont, which was the research base. 13. During each interview, I was able to take notes without apparently disturbing the men. Because a voice print can be a valid source of identification, I decided not to use a tape recorder. The decision to hand record was based on the assessment that the men were likely to be more candid than if a tape recorder was used. 14. The term Latino in this context refers to a number of different ethnicities; that is, Cubans, Puerto Ricans, and Dominicans. 15. This finding replicates previous research in the following: B. Johnson, P. J. Goldstein, E. Preble, J. Schmeidler. B. Spunt, and T. Miller, Taking Care of Business: The Economics of Crime by Heroin Abusers (Lexington, MA: Lexington Books, 1985); S. Magura, A. Rosenblum, and H. Joseph, “Aids Risk Among Intravenous DrugUsing Offenders,” Crime and Delinquency 37 (1991): 86–100; C. B. McCoy and E. Khoury, “Drug Use and the Risk of AIDS,” American Behavioral Scientist 33 (1990): 419–31. 16. B. G. Glaser and A. L. Strauss, The Discovery of Grounded Theory: Strategies for Qualitative Research (Chicago: Aldine de Gruyter, 1967); K. Charmaz, “The Grounded Theory Method: An Explication and Interpretation,” in Contemporary Field Research: A Collection of Readings, ed. R.M. Emerson (Boston: Little, Brown, 1983). 17. T.M. Hammet, 1988 Update: AIDS in Correctional Facilities (Washington, DC: National Institute of Justice, 1989); C. Potler, AIDS in Prison: A Crisis in New York State Corrections (New York: Correctional Association of New York, 1988). 18. B. G. Glaser and A. L. Strauss, Awareness of Dying (Chicago: Aldine, 1965).

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19. D. Snow and L. Anderson, “Identity Work Among the Homeless: The Verbal Construction and Avowal of Personal Identities,” American Journal of Sociology 6 (1987): 1336–71. 20. K. L. Sandstrom, “Confronting Deadly Disease: The Drama of Identity Construction Among Gay Men with AIDS,” Journal of Contemporary Ethnography 19 (1990): 271–94. 21. Ibid.

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THE CACTUS THAT MUST NOT BE MISTAKEN FOR A PILLOW: WHITE RACIAL FORMATION AMONG LATINOS Daniel A. Rochmes and G. A. Elmer Griffin

Latinos are choosing to become white in the same manner as Irish, Jewish, and other immigrants before them. The history of Latinos’ political posturing, desegregation efforts, and “assimilation” strategies reveal a persistent, deliberate disassociation with blacks and an insistence on whiteness. The Chicano Movement and contemporary indigenous identities have not constituted sufficient resistance to whiteness construction. Latinos have recapitulated whiteness in the form of modern antiblack racism and violence, most noticeable in Los Angeles and on the Internet. Although black–Latino coalitions hold promise for repudiating whiteness, Latinos must critically challenge whiteness and embrace blackness for these coalitions to succeed. Whiteness is an ideology of supremacy. It does not effectively describe a race, ethnicity, culture, or skin color. Whiteness does not declare or describe any positive attributes or content; it is a term of negation that declares only that it is the superior opposite of those things constructed as black. The critical study of whiteness understands that the term signifies nothing more than the privileged position in a system of false hierarchical binaries. This emergent discipline recognizes whiteness as both socially constructed and elected. Its theorists have paid particular attention to the acquisition of whiteness by immigrants and the pernicious toll of this choice, both for so-called whites and for those constructed as the inferior opposite of whiteness. There are well-known accounts of how Irish and Jewish immigrants came to be known as white.1 However, critical race theorists have paid little attention to the adoption of whiteness by Latinos, the largest and now most politically significant immigrant group to the United States.2 Although the history of Latino immigration is perhaps more complex than that of other immigrant groups, their geographic heterogeneity

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has not prevented them from recapitulating and extending the white/black binary that has constituted racialization in the United States. The history of Latino political strategy indicates that despite Latino-black political alliances and the particularities and complexities of Latino identities, they are choosing to become white in the same manner as Irish, Jewish, and other immigrants before them. The price of this white ticket is the continued devaluing of people constructed as black and the construction of new forms of whiteness that militate against the possibility of credible and politically powerful Latino identities. James Baldwin, the intellectual father of Critical White Studies, observed, “No one was white before he/she came to America.” Rather, Irish, German, Italian, Jewish, English, French, and other immigrants became white by endorsing white supremacy and actively oppressing those thereby constructed as black. They “became white . . . because of the necessity of denying the black presence, and justifying the black subjugation.”3 By “necessity,” Baldwin does not mean that immigrants had no choice but to adopt whiteness; he speaks of “deciding,” “opting” and “cowardice.” By “necessity,” he means that to become white, the immigrants had to join in black subjugation; that is, the construction of blackness as inferior. Agreeing to support the system of slavery, segregation, and Jim Crow, immigrants attained upward social mobility and secured a privileged status in their new country. The social status and rights granted them were those accorded to all who chose whiteness in exchange for endorsing and enforcing the notion of black inferiority. In his essays, Baldwin focused especially on Jewish immigrants who became white after arriving in the United States. He asserted, “It is probable that . . . the Jewish community . . . has paid the highest and most extraordinary price for becoming white.”4 Noting that Jews arrived in the United States as oppressed people, he wrote, “the Jews came here from countries where they were not white, and they came here, in part, because they were not white; and incontestably . . . American Jews have opted to become white.”5 To gain acceptance, they tried “to cover their vulnerability by a frenzied adoption of the customs of the country; and the nation’s treatment of Negroes is unquestionably a custom.”6 In other words, to ensure a sense of belonging and inclusion in an oppressive society, Jews assumed the same position as the oppressors—whiteness. Baldwin recognized, however, that the “price of the ticket,” the toll of becoming white, was high. Cowardice, the cost of giving into coercion, and the resulting moral erosion are the consequences of choosing to believe that one is white. “Because they think they are white, they do not dare confront the ravage and the lie of their history. Because they think they are white, they cannot allow themselves to be tormented by the suspicion that all men are brothers.”7 Imagining themselves to be white meant “persuading themselves that a black child’s life meant nothing compared with a white child’s life” and “informing their children that black women, black men and black children had no human integrity that those who call themselves white were bound to respect. And in this debasement and definition of black people, they debased and defamed themselves.”8 Baldwin saw clearly that choosing to be white did not always require immigrants to give up or change traditional or performative elements of their cultures. Baldwin illustrated this point in his essay “Negroes Are Anti-Semitic Because They’re

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Anti-White” by demonstrating that Jewish immigrants became white by participating in the exploitation of blacks, not by abandoning Jewishness.9 There is no “white” culture, religion, or language, Baldwin wrote; there are many cultural ways of being white. Any immigrant group, including Latinos, could become white while maintaining their holidays, native languages, naming conventions, and other proprietary cultural practices. This was certainly the case with the Irish. As Noel Ignatiev has shown in How the Irish Became White, the Irish chose to endorse the system of black slavery in exchange for acceptance as whites.10 In declaring solidarity with so-called whites against so-called blacks, the Irish were able to fold themselves into the privileged group of “a bipolar system of color caste, in which even the lowliest of ‘whites’ enjoyed a status superior in crucial respects to that of the most exalted ‘blacks.’”11 However, this did not require that they relinquish Catholicism or St. Patrick’s Day. Whiteness requires only the dogma of black inferiority. It is predicated, as Toni Morrison says, “on the backs of blacks.” Assimilation has meant making “negative appraisals of the native-born black population,” “buying into the notion of American blacks as the real aliens,” and striking “a hostile posture toward resident blacks.”12 LATINOS AND THE HOSTILE POSTURE Latinos have been adopting a posture of hostile disassociation from blacks for some time. A key area of white racial formation among Latinos exists in the nexus of an insistent claim on American identity that they imagine is best achieved through assimilation into the American mainstream. As the Latino population of the Southwest came into increasing contact with so-called whites, they saw the disparity between whiteness and blackness. Mexican Americans “were often treated as ‘colored’ and were consequently segregated in most social spheres.”13 Latinos were separated from “whites” in housing, restaurants and eateries, and public facilities such as swimming pools and schools.14 They did not enjoy being treated as “colored” and tried to prove that they should be accepted into mainstream America. In some cases they decided that the key to achieving such acceptance was to declare that they were white. This seemingly relentless claim to whiteness (i.e., nonblackness) and the resulting political and moral confusion is evident in the history of their attempts to assimilate. One organization at the forefront of assimilation efforts is the League of United Latin American Citizens (LULAC). LULAC understands itself, or describes itself now, as having been organized in response to anti-Latino racism. However, it was formed in response to the black–white color line demarcation that made Latinos black, and LULAC’s original—and to some degree its contemporary—energy comes from crossing this line into the white “mainstream.” The organization was formed in Texas in 1929 by the merger of councils of several Mexican-American citizens’ groups, including the patriotically named Sons of America and Knights of America. Founded by “mostly urban and middle class” men, LULAC “restrict[ed] membership to US citizens and emphasiz[ed] English language skills and loyalty to the Constitution of the United States.”15 The organization “Adopted . . . the American flag as the official flag, ‘America’ as the official song, and ‘George Washington’s

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Prayer’ as the official prayer.”16 It also selected as its emblem a red, white, and blue shield “symbolizing defense against and protection from racism.”17 LULAC took antiimmigrant positions, fighting successfully to keep bracero workers out of Texas and supporting Operation Wetback, the notorious 1954 deportation of undocumented immigrants. It was dedicated to advancing its members into the American mainstream, supporting “liberalism, individualism . . . free-market capitalism[,] anticommunism[,] United Stations patriotism,”18 and disdain for blacks. LULAC recognized that an essential step to becoming “American” was not emphasizing patriotic logos and ideology but asserting black inferiority. To declare black inferiority, Latinos argued that they were white and stood on the opposite side of the color binary from blacks. Thus, in the 1930s and 1940s, “Mexican Americans . . . began to object strenuously to being labeled as colored or forced to share facilities with black Americans.”19 LULAC members explicitly declared themselves white and denounced blacks: In a 1932 article in the LULAC News titled “Are Texas-Mexicans ‘Americans’?” the author asserted that Mexican Americans were “the first white race to inhabit this vast empire of ours.” Another member of LULAC boasted that Mexican Americans were “not only a part and parcel but as well the sum and substance of the white race.” As selfconstituted Whites, LULAC members considered it “an insult” to be associated with blacks or other “colored” races. In 1936 a LULAC official deplored the practice of hiring “Negro musicians” to play at Mexican bailes (dances) because it led to “illicit relations” between black men and “ill-informed Mexican girls.” He urged fellow LULAC members to “tell these Negroes that we are not going to permit our manhood and womanhood to mingle with them on an equal social basis.”20

Other Latino organizations such as the American GI Forum joined in LULAC’s denunciation of blacks. In particular, they adopted the rhetoric of white supremacy in criticizing blacks as violent noncitizens and pointing to themselves in contrast as model citizens. In the wake of the Watts riots in 1965, both LULAC and the American GI Forum “sent President Lyndon Johnson a resolution pointedly contrasting [Latinos’] assimilationist orientation with black militancy” and claimed that “unlike blacks, Mexican Americans eschewed civil disobedience and violent confrontation” in favor of loyalty to whiteness.21 Criticizing the slogan “Brown Power,” the founder of the American GI Forum, Dr. Hector P. García, said, “That sounds as if we were a different race. . . . We’re not. We’re white. We should be Americans.”22 For García, the prospect of being a “different race” from whites—that is, black—was the difference between being American and non-American. Neil Foley recognizes that in attempting to assimilate, many Latinos “subsumed their ethnic identities under their newly acquired White racial identity and its core value of White supremacy.”23 Foley recounts the telling case of Pedro R. Ochoa, who published the six-page newspaper Dallas Americano in the 1950s. Ochoa: [P]rinted headlines such as “conserva su raza blanca” (preserve your White race) and “segregación es libertad” (segregation is liberty). . . . In his own column, which he signed “Pedro el Gringo,” he urged Latino citizens to identify themselves as “americano” or American because, he wrote, the “Latin, Mexican, and European are foreigners.” He

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regarded Mexican Americans who joined with African Americans in the struggle for civil rights as race traitors and encouraged his readers to join the “Spanish Organization of White People.” In a Spanish editorial titled, “No use nopal como almohada” (“don’t use a cactus as a pillow”), Ochoa wrote: “The American GI Forum, LULAC, the NAACP, chambers of commerce, and other nigger groups [“agrupaciones niggerianas”] have consistently promoted integration to raise the equality, intelligence, and superiority of the black race.” Ochoa sought to lead his people from alien Mexican to native White in part by rejecting Mexicanness in favor of Americanness and whiteness.24

For Ochoa, integration and identification with blacks was the cactus that must not be mistaken for a pillow. Foley sees clearly that what he terms the Faustian pact with whiteness may cost Latinos their souls. He also understands that this pact is made on the backs of blacks. However, Foley’s limiting interpretation of antiblack sentiment among Hispanics is problematic. He characterizes Ochoa as a “white supremacist,” forgetting that whiteness is itself a supremacist ideology and Ochoa an exemplar, not an exceptional case. His essay relegates Ochoa’s position “that only by keeping blacks down could marginally white Mexicans raise themselves up”25 as outdated and belonging to an older generation. Foley sees the cost of the pact primarily in terms of cultural loss of “rejecting Mexicanness,”26 but it is already clear that one can become white yet remain Mexican, Mexican American, or Latino. His observations about antiblack racism among Latinos are obscured by his rhetoric of hybridity, complexity, passivity, and exceptionalism. In stating that “many Hispanics enjoy the ‘wages of whiteness’ as a result of a complex matrix of phenotype, class position, culture, and citizenship status,” he sees Latinos as “accomodationist,” passive recipients of white identity.27 Foley does not acknowledge that the pact of becoming white requires initiative and deliberate inaction. Nor does he read Latino racism in terms of its moral or political consequences. He therefore does not fully recognize the costs of these actions nor allow his readers to see the nature of the “benefits” of whiteness for Latinos. Latinos not only claimed whiteness through political organizations and media but insisted on their whiteness in the educational and legal arenas. Twenty-four years before Brown v. Board of Education, Mexican Americans went to court to prohibit the school segregation of their children. The school segregation of Mexican-American students began to occur throughout the Southwest as early as 1892.28 The typical segregated so-called “Mexican school” was decrepit and offered few amenities.29 Overall, conditions at such schools throughout the Southwest were deplorable and contrasted sharply with well-equipped and well-maintained schools for so-called white children in the same areas. The first lawsuit against the school segregation of Latinos was Del Rio Independent School District v. Salvatierra, filed in Texas in 1930.30 The Salvatierra case established the primary argument that Mexican Americans would use for forty years of subsequent desegregation litigation—that Mexicans and Mexican Americans were “white” and could not be lawfully segregated from “all other white races.”31 Per this argument, Mexican-American students were being arbitrarily singled out and separated from “other white” students, and such a separation between two groups of the “white race” was illegal. The Salvatierra trial court ruled in favor of the plaintiffs, deciding,

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“Mexicans were White and had been arbitrarily segregated because they were Mexican.”32 Although an appellate court overturned the ruling, it agreed with the trial court in principle, stating, “school authorities have no power to arbitrarily segregate Mexican children . . . from schools maintained for children of other white races.”33 This argument against segregation was substantially different than that of the plaintiffs in Brown v. Board of Education. In Brown, the plaintiffs argued that racial segregation was principally and constitutionally unjust. The Mexican-American plaintiffs, in contrast, did not challenge the prevailing system of segregation. Instead, they argued that they should be considered white under it. This argument was abandoned only once it began producing undesirable results: as Mexican Americans were considered white by law, Texas schools began “integrating” them with black children to satisfy desegregation orders.34 In another case, one district “simply eliminated the existing category of Mexican schools and declared that Mexican Americans had always been Caucasian. Since there is no obligation to distinguish among Caucasian students, the quality of the Mexican schools did not change; the fact that Mexican children were in substandard schools now became just a matter of bad luck,” not racism.35 It was possible, after all, for Latinos to have argued that school segregation was simply immoral and that no child should be treated in this way. In doing so, they could have identified with segregated, so-called black, children. Instead, they took the same position that the Irish did on the question of slavery: in effect, We see why it is done to them, but we do not deserve it. CHICANOS/CHICANAS In the 1960s, a new generation of young Mexican Americans emerged in the context of the civil rights movement. Calling themselves Chicanos and Chicanas, they led an identity movement that sought to break from the assimilationist agendas of conservative Mexican Americans and organizations such as LULAC and the American GI Forum. In particular, Chicanos and Chicanas struggled with their identity vis-à-vis the racial hierarchy of white and black. Foley argues that Chicanos and Chicanas effectively resisted white racial formation by refusing to assimilate into “mainstream” America. He states that they successfully “rejected the ‘wages of whiteness’” by “resurrecting their Indian heritage.”36 This resurrection and bold assertion of indigenous cultural identity, Foley says, “celebrated [Chicanos’] exclusion from and opposition to White America.”37 However, like the assimilationist Mexican-American generations before them, Chicanos uncritically continued to disidentify with blacks, constructing their own identities in contrast to those of blacks. Ian F. Haney López’s book Racism on Trial: The Chicano Fight for Justice confirms that Chicano identity—brown identity—is constructed in negative contrast to black identity. He acknowledges a momentary and fragile alliance between blacks and Latinos in Los Angeles that could not be sustained by the history of the Chicano movement, given that the movement was accustomed to insisting on its whiteness. López notes that early in the movement, “Chicanos initially drew strong parallels between brown and black identities,” but by late 1969, “lingering prejudice, coupled with ideas that linked Mexican identity to indigenous ancestry, stemmed Chicano assertion of a functionally black identity.”38 He states that “As Chicano activists

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moved to distinguish themselves from blacks, they analogized their identity to that of Native Americans.”39 He quotes Chicano activist lawyer Oscar Acosta, “the lead attorney for the Chicano movement in Los Angeles,”40 as writing in an autobiographical essay: The black man came here as a slave. He is not of this land. He is so removed from his ancestry that he has nothing but the white society to identify with. We have history. We have culture. We had a land. . . . Of course there is Spanish and European blood in us, but we don’t always talk about it because it is not something we are proud of.41

Acosta here absorbed the singular tenet of white supremacy: the inferiority of black people. López rightly sees that “Mexicans stressed their native ties partly in order to distance themselves from the black experience. Acosta accepted the notion that slavery reflects fault on the part of, and therefore stigmatizes, the black community. Though Chicanos did not want to be white, neither did they want to be black.”42 The structure of Acosta’s comments is to first declare that blacks are debased and inferior and then to add that Chicanos are not black. Although he ambivalently acknowledges European blood, similar to an increasing number of Latinos in the 2000 Census, he chooses to disavow the necessity of African blood. López analyzes Chicano identification with whiteness primarily in terms of their being caught in the binary between black and white—as being neither here nor there. His analysis does not recognize that the apparent indeterminacy, the undecided position that pushes the Chicano quest for identity, is predicated on an active disidentification with blacks. It is the disavowal of black identity that opens Chicano identity to the possibility of a credible (nonblack) indigenous identity. López does not see antiblack sentiments as the decisive component that reconnects the apparently radical, indigenous-focused Chicano movement with conservative assimilationist ideology. Contemporary Latino and Latina assimilationists such as Linda Chavez, George W. Bush’s failed first-term nominee for Secretary of Labor, have attacked the Chicano movement’s focus on nonmainstream indigenous identity as a mistaken cultural and political strategy precisely because it is black identified and therefore cannot be a means of assimilation or Americanization. In her 1991 book Out of the Barrio: Toward a New Politics of Hispanic Assimilation, Chavez argues that the association with the political strategies of the 1960s was a mistake for Latinos and that a disassociation is now urgent. She glorifies as successful the assimilation of “Every previous group—Germans, Irish, Italians, Greeks, Jews, Poles. . . . They learned the language, acquired education and skills, and adapted their own customs and traditions to fit into an American context.”43 Arguing in an essay published on the Internet that assimilation is vital for Latinos, she states, “Poles, Greeks, Italians, Jews and others learned English and came to think of themselves as Americans. . . . The key to success for today’s Hispanic immigrants is to follow the same path.”44 Chavez does not demonstrate a critical awareness of the “price of the ticket” for this assimilation. Instead, she cautions against the failure to assimilate, using the civil rights movement as a negative example. The “civil rights model” of assimilation, as she calls it, produced more color (i.e., black) consciousness and color-based “entitlements”, which

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“encouraged Hispanics to maintain . . . their separate identity,” “placed a premium on disadvantaged status,” and allowed “[a]ssimilation [to give] way to affirmative action.”45 More dangerously, her book and her ideology are a call for and an enactment of a return to the essential step of Americanization: a denouncement of black politics. For Chavez this step takes form as a denouncement of the programs and political postures associated with blacks: the civil rights movement of the 1960s, the 1964 Civil Rights Act, and affirmative action—read by Chavez as a call to be treated as a “permanently disadvantaged minority.”46 Hispanic leaders, she says, are “intent on vying with blacks for permanent victim status.”47 It is clear to her that blacks as people and policy must be “leaped over,” as they are seeking to be permanent victims and are positioned as a point of departure or a place to stand against (rather than with) in the acquisition of American identity. “Most native-born Hispanics have leaped over blacks in achievement,” she argues, “and those Hispanics who are most disadvantaged are . . . recent immigrants,”48 who are in danger of joining blacks rather than making the leap into whiteness. This identification with the methodological blackness of the 1960s that Chavez denounces is the core element of Chicano identity that Foley describes as the antidote to white identity development in Latinos. However, the history of the Chicano movement demonstrates that Chicanos and Chicanas persistently disassociated with blacks and rejected blackness as inferior. The critical question therefore becomes whether or not contemporary Chicano identity constitutes sufficient resistance to the dynamics of whiteness construction. In their desire to reject whiteness, Chicanos are faced with the difficulties of the whiteness equation: whiteness has been defined as the superior opposite of blackness. Those who are not white must be black and, by definition, inferior. “Brownness” has no fixed place in the black–white binary. Chicano identity strives to say I am not white, but to not be white means to be both black and inferior. This equation has pressed many Chicanos into uncritically disassociating with blackness as a way of affirming the value of a brown identity. However, Chicano identity constructed without a critical awareness of whiteness as “the maintaining force” of a racial system that posits “some as superior and others as subordinate” replicates its hierarchies.49 The disassembly of whiteness would appear to be the necessary predicate for the formation of an ethnic identity that does not require a corresponding inferior. MODERN HOSTILE POSTURES The contemporary history of Latinos in the United States presents new problems for the critical study of whiteness. The absence of a public and pronounced antiblack discourse on the order of slavery and segregation makes the analysis of Latino whiteness both more difficult and more urgent. To become white, previous immigrants relied on the existence of readily available antiblack racial paradigms: segregation and Jim Crowism in the case of Jews and antiabolitionism in the case of the Irish. The contemporary racial politics in which we would analyze Latino whitening do not provide such overt racist discourses. The resistance of blacks has made it such that they are no longer a singularized group; they have turned into quicksand what was

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once a firm place on which to stand and declare white superiority. The language of antiblack racism and its constituent components has become less public—subtler, and therefore more virulent. Coded language has made it possible to simultaneously declare and deny antiblack positions and to insist that there are valid reasons to take historically antiblack positions. In addition to the absence of a legitimated public discourse that devalues blacks, the seemingly relentless evolution or adaptation of whiteness complicates the task of critically examining white racial formation among Latinos. Lani Guinier and Gerald Torres correctly recognize that the “Racial Bribe” that invites Latinos to “join whiteness” functions to “expand the range of physical characteristics that can fall within the definition of white [and] make the social position of whiteness appear more racially or ethnically diverse”; that is, less visible.50 Invisibility has been the characteristic of whiteness that has best allowed it to resist critical examination. This “Whiteness of a Different Color”51 poses new intellectual challenges as well as political/moral ones. In addition to those identified by Baldwin, which would include defusing the political agenda of blacks, there is the danger that Latino whiteness will co-opt and marginalize their political force. The nature of increasing Latino/black antagonisms can therefore be read not merely as competition over limited economic resources, as seen by the Los Angeles Times, but as signs that Latinos are accepting the Racial Bribe of whiteness and, in doing so, are resurrecting and rearticulating a public antiblack discourse. In the prologue to The Miner’s Canary, Gerald Torres remarks that when he was in high school it was impossible for him to be both Mexican and white, but as an adult, “being Hispanic and white is apparently no problem. . . . I am promised the possibility of joining a new nonracialized category: Whiteness of a different color.”52 If the 2000 Census data is any indicator, many Latinos are opting for this whiteness. For its 2000 survey, the Census Bureau declared that “People who identify . . . as Spanish, Hispanic, or Latino may be of any race”53 because “The federal government considers race and Hispanic origin to be two separate and distinct concepts.”54 This methodology, introduced in the 1980 census, meant that those who identified themselves as Hispanic or Latino also had to indicate their race, choosing among fifteen racial categories. Forty-eight percent of all Hispanics on the 2000 Census reported their race as white, and only two percent identified as black or African American. Demographers also observed variations between Latinos in different areas of the country. For instance, “in California . . . 42 percent of U.S.-born MexicanAmericans identified themselves as white,”55 but “[i]n Texas, 61% of Latinos of Mexican origin said they were white. In Florida, 92% of Cubans identified as white, compared with 68% in California. In both states a low percentage of Cubans said they were black.”56 Finally, “81 percent of Puerto Ricans living on the island identified themselves as white . . . while only 46 percent of those living on the U.S. mainland did so.”57 Alex Lopez Negrete, a Latino Houston businessman, explained, “If you ask Latinos if they consider themselves people-of-color, most of them would say ‘no.’ The term strips us of our identity, which has taken us nearly 60 years to get.”58 Negrete does not describe, nor apparently understand, the nature or cost of this hard-won identity, but

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he knows that it is not colored. The Los Angeles Times observes, concerning the Great White Influx, “today, many immigrants say they equate whiteness with opportunity and inclusion.”59 Nowhere are the consequences of this racial formation clearer than metropolitan Los Angeles, where high concentrations of Latino and black populations have come into ever-increasing contact. The Los Angeles Times has reported considerable “racial tension” between Latinos and blacks occurring in the forms of political rivalries, high school brawls, residential self-segregation, and job competition. Articles published in the Times purportedly demonstrate that discord arises as Latinos move into predominantly black cities and neighborhoods. However, the Times has tended to interpret such “tension” simply as the inevitable result of competition over limited resources or power rather than the perilous effect of the dynamics of white racial formation. In reducing racial conflicts to economics or seeing power struggles as more basic, the Times perpetuates an analytic oversight that has kept the dynamics of whiteness invisible. David Roediger has illustrated that in the study of whiteness, it is a mistake to believe that “race is created wholly ideologically and historically” and that “‘the economic’ is more real, more fundamental, more basic or more important than race, both in political terms and in terms of historical analysis.”60 Despite its keen interest in these racial conflicts, the Times has missed the possibility that “tensions” between Latinos and blacks are signs of an emergent white racial formation among Latinos. Several poignant incidents reported in the Times serve to illustrate Latinos’ eagerness to disassociate themselves from blackness. In March 2003, the Times reported on a conflict between Latino and black churchgoers at the predominantly black Holy Name of Jesus Catholic Church in South Central Los Angeles. Father Gregory Chisholm was “the first African American priest to take the helm” of the church, and “his installation was a point of tremendous pride for the region’s black Catholics.”61 Having a black priest was especially meaningful because blacks “have long been a minority within the Catholic Church and have often felt neglected by it.”62 Latino parishioners, though, were immediately dissatisfied with him and circulated a petition calling for a Spanish-speaking priest to be installed as well. Chisholm told the Times that the rejection from Latino churchgoers “was one of three moments in his life when he felt discriminated against.”63 When he organized forums to resolve problems among parishioners, few Latinos attended. After he announced his departure from the church, Latinos stepped up their efforts to have a Latino priest. The Times reported, “Ideally . . . Latino parishioners want a Spanish-speaking priest who can strengthen their community and attract more Latinos to the church.”64 In another incident, Latinos demanded outright separation from blacks. In September 1991, the Times reported that someone set an arson fire in front of a Latino family’s apartment in the predominantly black Jordan Downs housing project in Watts. In the chaos of the fire, the Latino father whose apartment was ablaze shot a black neighbor trying to rescue the family.65 Police speculated that the neighbor was shot after the Latino man mistook him as the arsonist. In the days that followed, “some Latino residents demanded . . . that segregated buildings be set aside for them within the predominantly African-American complex.” One Latina tenant “acknowledged that such a move might exacerbate racial tensions between her and her black

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neighbors” but “contended it [segregation from blacks] is the only way for Latinos to feel comfortable.”66 The Times also reported considerable Latino antiblack sentiment in Los Angeles schools. In South Gate, a predominantly Latino city near Compton, South Gate parents “objected to sending their children to a nearby predominantly black high school.”67 A black student at South Gate Middle School recounted to the Times that on his first day at the school, “As soon as my mother and I walked through the gate someone yelled, ‘What’s this nigger doing on our campus?’” He said he was taunted with derogatory antiblack slurs, “had erasers and paper clips thrown at him, and chocolate milk dumped on his head. . . . At various times outside school, Latino youths allegedly took turns kicking him in the back, poking him in the backside with a rusty nail and spraying his face with black paint.”68 Latino antiblack sentiment was alarmingly evident at Jefferson High School in South Los Angeles, where the two groups fought violently and traded insults over a period of months in the spring of 2005. One large fight began after a Latino shouted at a group of black student athletes, “Go back to Africa!”69 When a group of Latina students consoled a black girl who had been beaten in the fight, other Latinas accused them of “having ‘no pride in your own people.’”70 An anonymous Latino student who participated in the fight later wrote that he had to “stand up for my family, my Mexican ancestors . . . my heritage that I’m really proud of. I felt good defending my race. . . . Many of my friends who knew I was involved in the fight asked me, ‘Aren’t you proud that our people are at war with the blacks?’”71 Latinos constituted 92 percent of the 3800-strong student body at Jefferson High; blacks numbered only about 300 students. Most disturbing was the targeting of blacks living in Highland Park by the Avenues, the dominant Latino gang in that northeast Los Angeles neighborhood. In a report detailing three recent homicides, LA Weekly magazine described the Avenues’ “well-documented history of attacking blacks dating to the early ’90s.”72 An FBI agent interviewed by the Weekly said, “They thought there were too many around.”73 A friend of one of the victims told the Weekly that Avenues members “started chasing and calling us niggers. They told us to get out of the neighborhood. . . . They ran us out of Highland Park. . . . I was fearful for my life. I knew other guys from other gangs. . . . They used to tell us that Avenues don’t like blacks. They would tell us to be careful.”74 An Avenues member was convicted in 2001 of murdering two of the victims. In 2004, federal authorities indicted four Avenues members for: several other attacks against blacks, such as the beating of a man who was seen walking with a Latino woman, a murder plot against a man who had just moved into the neighborhood, an assault on a group of men playing basketball in Montecito Park, racial slurs directed at a girl in a supermarket, drawing chalk outlines of human bodies in the driveway of a black resident’s home and the beating of a black man who stopped to use a pay phone on the street.75

The Avenues’ actions are reminiscent of the historical project of the Ku Klux Klan and recapitulate the inhumane, physically violent elements of whiteness. In late 2006, the four Avenues defendants were “convicted of breaking federal hate crime

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laws, traditionally employed against white supremacist groups like skinheads and the Ku Klux Klan.”76 The Los Angeles Times remarked that the crimes involved “the most chilling aspects of old-time Deep South bigotry” and noted that “the Avenues’ violence was deliberately aimed at African Americans with no gang affiliations, including women and children.”77 These incidents highlight Latinos’ continuing readiness to subjugate blacks and choose whiteness instead of allying with blacks in oppressive conditions. In all of these examples it would have been more advantageous for the Latinos to combine their concerns with blacks and direct their collective force against the divisive dynamics of the larger white institutions, churches, schools, housing projects, and neighborhoods. But these incidents show the willingness of some Latinos to work for the “wages of whiteness” rather than the economic, political, and moral advantages of a working alliance with blacks. As David Roediger indicates, accepting these wages and the concomitant oppression of blacks has been the hallmark of immigrants’ identification with whiteness. Latinos who repudiate blacks recapitulate the pattern of white racial formation of immigrants before them. One of the best sites of the dilemma of contemporary Chicano/Latino identity is evident in published messages on the Internet. The uninhibited, semi-anonymous, and free space of the World Wide Web represents one of the few places where public, explicit, and overt antiblack expression is still possible. Such messages constitute a significant part of racial identity formation as they represent young peoples’ attempts to define and determine who they are. Here, Chicanos are struggling with identity in an urban context, posting, conferring, and creating a discourse by which they hope to establish their racial/ethnic positions. Unfortunately, like LULAC, the American GI Forum, “Pedro el Gringo,” and Linda Chavez, an essential component of this racial formation has been a denouncement of blacks and a rejection of loyalties to things associated (either real or stereotypically) with blackness. This whiteness formation is evident in messages posted to The Siccness Network, an online message board describing itself as “The Last Remaining Sanctuary for Gangsta Rap.”78 In a discussion about antiblack sentiment among Latinos, one person stated, “alot of my homeboys do hate black people . . . [they’re] constantly saying nigger this nigger that, even more so then they hate white people.”79 A Latino from Los Angeles participating in the same discussion wrote, “I got hella cousins who have tried to date black guys. My uncles all beat the shit out of my cousins so they wouldn’t do something that stupid again (according to them).”80 Another person replied, “my mexican homies say that if they ever in their life brought a black girl home they would be cast out the family and shit. it doesn’t matter what race they are as long as they aint black.”81 In a discussion about Chicanos “acting black,” one Chicano expressed his disapproval, declaring, “I’ll be the first to say I get pissed when I see Chicanos with cornrows in their hair sportin [Sean John clothes], with gold teeth and poppin they collaz and sayin shit like ‘Sup mayne.’”82 He also stated his approval for Chicanos who “Still got the knowledge and keep there heritage alive.”83 In another discussion, a Chicano youth invoked the association between Chicanos and blacks to insult rivals, writing, “The fuck is with you busters always siding with niggers[?] No wonder half

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you fucks run around in FUBU with braids in your hair.”84 Elsewhere on the Internet, a Chicano man wrote a statement in the Aztec language Nahuatl and added, “If you Mexican and have no idea what it means then you aint Mexican. . . . Before I forget: fuck busters, fuck niggers, fuck nigger wannabes . . . and all you fukken fools and bitches that dress act and talk like mayates [niggers].”85 These examples demonstrate that for Chicano identity the “Negro” still provides a relational model and contrast to which they can establish a positive and superior sense of identity, whether that identity is Chicano, Latino, indigenous, Mexican, Mexican American, Latin American, or American. In its denouncement of blacks as inferior, such rhetoric of contemporary Chicanos is not substantially different from that of Linda Chavez. It appears that Latinos have been increasingly choosing whiteness and that recent efforts to self-identify as indigenous, Chicano, and Indian have not curtailed this trend. As Yareli Arizmendi, a Mexican-American actress, told the Los Angeles Times in July 2002, “I am Latino. . . . But I am white too, and I don’t want to be pegged as ‘the other.’”86 Perhaps it is telling that Arizmendi, coauthor and star of the 2004 film A Day without a Mexican, turns out to be the one Latina in the movie who does not mysteriously disappear. This evolution in whiteness into less visible and more resilient forms constitutes an urgent problem for the critical study of whiteness. Latino whiteness is less detectable as whiteness, particularly to Latinos themselves. It has been seen in the larger political world in terms of conservative political agendas and characterized in the rhetoric of hard work and hard-won social gains. Predicated as it is on the construction of Latino immigrants as being prepared to do the work that others do not want to do, Latino whiteness makes them increasingly exploitable as it ties the image of so-called blacks more firmly to the construction of them as being lazy, foolish, and quintessentially un-American. SUSPECT COALITIONS Two events in the first half of 2005 suggested that Latinos momentarily forsook whiteness to form coalitions with blacks in Los Angeles. The first was the heavily Latino-backed appointment of Martin Ludlow, a black Los Angeles city councilman, to chair of the Los Angeles County Federation of Labor. The second was the election of city councilman Antonio Villaraigosa as mayor of Los Angeles. Villaraigosa received endorsements from influential Los Angeles blacks such as city councilman Bernard C. Parks, U.S. Representative Maxine Waters, county supervisor Yvonne Brathwaite Burke, basketball star Earvin “Magic” Johnson, and others.87 He also received support from black voters whose allegiance shifted from former LAPD chief Bernard C. Parks in the March 2005 initial mayoral election to Villaraigosa in the May runoff against incumbent James K. Hahn. Villaraigosa’s ascendance to mayor of Los Angeles was trumpeted by reporters internationally as a classic story of immigrant success.88 As the first Latino mayor of Los Angeles in 133 years and as an internationally celebrated politician, Villaraigosa must publicly articulate a critical awareness of white racial formation among Latinos:

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Their whiteness must be explicitly acknowledged and challenged. This step is a requisite element of coalition-building between Latinos and blacks. Together, the successes of Ludlow and Villaraigosa indicate that Latino–black coalitions could serve as the antidote to white racial formation among Latinos. Instead of repudiating blackness, Latinos who join forces with blacks embrace blackness. However, the emerging coalition in Los Angeles remains suspect. The Los Angeles Times noted that although “a historic alliance of blacks and Latinos” appeared to form behind Ludlow and Villaraigosa, some blacks nonetheless felt anxious about the prospect of a Latino mayor.89 Their concern is well-founded. Historically, no group—from the Irish to the Jews to anyone else—ever maintained a coalition with blacks any longer than was politically or economically convenient and advantageous. Thus, the partnership between Latinos and blacks must be more than a mere political or economic “marriage of convenience.” It must dismantle the white racial formation within Latinos themselves. After all, Latinos cannot form meaningful coalitions with people whom they actively construct as inferior. If Latinos choose whiteness and forego the opportunity to build lasting coalitions with blacks, they will pay a high price. Whatever the cost of whiteness for the descendants of Africans in this country, its cost for Latinos is more spiny and insidious. The ethical and intellectual cost of racism for the racist is increasingly known—moral numbing, a seared intellectual conscience, a machine of cultural production hopelessly built on the quicksand of a lie, and that terrible feeling you get when you realize you have been taken for a ride. Add to this political marginalization, as historically the decision to be white has distanced Latinos from both whites and blacks and placed them in the ineffectual position of collective cultural passing. An unwitting and unseeing contribution to an ideology of supremacy that can support and enrich only those cultural elements of Latino identity that explicitly or implicitly say “I am not black” cannot yield much. Latinos must cultivate a political alliance with blackened people not simply to avoid the stultifying economic wages of whiteness but also to effectively challenge whiteness as the signifier of superiority in this country. To paraphrase Baldwin in The Price of the Ticket, so long as Latinos think they are white, there is no hope for them. The search for a meaningful Latino identity and real political inclusion in the United States must be predicated on the dismantling of whiteness. NOTES 1. Karen Brodkin, How Jews Became White Folks and What That Says about Race in America (New Brunswick, NJ: Rutgers University Press, 1998); Noel Ignatiev, How the Irish Became White (New York: Routledge, 1995). 2. Ricardo Alonso-Zaldivar, “Latinos Now Top Minority,” Los Angeles Times, June 19, 2003, sec. A. In June 2003, the Census Bureau announced that Latinos had become the nation’s largest minority group. The Los Angeles Times reported, “In an indication of strong growth, Latinos accounted for half the increase of 6.9 million in total US population since April 2000” and the nation’s Latino population increased 10 percent between 2000 and 2002. 3. David R. Roediger, Black on White: Black Writers on What It Means to Be White (New York: Schocken, 1998), 178.

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4. 5. 6. 7. 8. 9. 10. 11. 12. 13.

14. 15.

16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29.

30. 31. 32. 33. 34.

35. 36.

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Ibid. Ibid. James Baldwin, The Price of the Ticket (New York: St. Martin’s, 1985), 9. Roediger, Black on White, 178. Ibid., 179–80. Baldwin, The Price of the Ticket, 425–33. Ignatiev, How the Irish Became White. Ibid., 100. Toni Morrison, “On the Backs of Blacks,” Time 142, no. 21 (Fall 1993): 57. Rubén Donato, Martha Menchaca, and Richard R. Valencia, “Segregation, Desegregation, and Integration of Chicano Students: Problems and Prospects,” in Chicano School Failure and Success, ed. Richard R. Valencia (London: Falmer, 1991), 33. Carlos M. Alcala and Jorge C. Rangel, “De Jure Segregation of Chicanos in Texas Schools,” Harvard Civil Rights-Civil Liberties Law Review 7 (1972): 308. Neil Foley, “Becoming Hispanic: Mexican Americans and the Faustian Pact with Whiteness,” in Reflexiones 1997, ed. Neil Foley (Austin, TX: Center for Mexican American Studies, 1998), 54. Texas League of United Latin American Citizens, “About Texas LULAC.” Ibid. Ibid. Foley, “Becoming Hispanic,” 56. Ibid., 54. Ian F. Haney López, Racism on Trial: The Chicano Fight for Justice (Cambridge, MA: Belknap Press of Harvard University Press, 2003), 163. Ibid., 207. Foley, “Becoming Hispanic,” 63. Ibid., 63–64. Ibid., 64. Ibid. Ibid., 65. Donato, Menchaca, and Valencia, “Segregation, Desegregation,” 28. Alcala and Rangel, “De Jure Segregation,” 321, 362–63; Robert R. Alvarez Jr., “The Lemon Grove Incident: The Nation’s First Successful Desegregation Court Case,” Journal of San Diego History (Spring 1986): 118; Donato, Menchaca, and Valencia, “Segregation, Desegregation,” 29–32; Jack McCurdy, “School Board Minutes Play Big Role in Oxnard Desegregation,” Los Angeles Times, January 19, 1975, sec. 2; Joe C. Ortega and Peter D. Roos, “Chicanos in the Schools: An Overview of the Problems and the Legal Remedies,” The Notre Dame Lawyer, no. 51 (1975): 79. Del Rio Independent School District v. Salvatierra, 33 S.W.2d 790 (Tex. Ct. App. 1930). Alcala and Rangel, “De Jure Segregation,” 334. Donato, Menchaca, and Valencia, “Segregation, Desegregation,” 37. Alcala and Rangel, “De Jure Segregation,” 334. Steven H. Wilson, “Brown Over ‘Other White’: Mexican Americans’ Legal Arguments and Litigation Strategy in School Desegregation Lawsuits,” Law and History Review 21 (2003): 178. Lani Guinier and Gerald Torres, The Miner’s Canary (Cambridge, MA: Harvard University Press, 2002), 231. Foley, “Becoming Hispanic,” 65.

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37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54.

55.

56. 57. 58.

59. 60. 61. 62. 63. 64. 65. 66. 67. 68.

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Ibid. López, Racism on Trial, 210–11. Ibid. Ibid., 30. Ibid., 211. Ibid., 212. Linda Chavez, Out of the Barrio: Toward a New Politics of Hispanic Assimilation (New York: Basic, 1991), 2. Linda Chavez, “Schwarzenegger Could Help Make the American Dream a Reality for California Hispanics,” Jewish World Review, August 26, 2003. Chavez, Out of the Barrio, 5. Ibid., 6. Ibid. Ibid. Ian F. Haney López, White by Law (New York: New York University Press, 1996), 31. Guinier and Torres, The Miner’s Canary, 225. Ibid., 223. Ibid., 9. U.S. Census Bureau, “Hispanic Origin,” U.S. Census Bureau, available at http:// quickfacts.census.gov/qfd/meta/long_68188.htm (accessed June 6, 2003). Elizabeth M. Grieco and Rachel C. Cassidy, “Overview of Race and Hispanic Origin,” U.S. Census Bureau, available at http://www.census.gov/prod/2001pubs/ c2kbr01-3.pdf (accessed June 6, 2003). Ricardo Alonso-Zaldivar, “What’s in a Racial Identity? American Latinos All Over the Map, Study Finds; Identification as white varies by region, and is reflected in education, earning and voting,” Los Angeles Times, December 6, 2004, p. A17. Ricardo Alonso-Zaldivar, “For Millions of Latinos, Race Is a Flexible Concept,” Los Angeles Times, March 11, 2003, sec. A. Alonso-Zaldivar, “What’s in a Racial Identity?” Keith D. Ellison, “Hispanic, Latino, Person of Color: What’s the Right Label?” Allied Media Hispanic Newspapers and Magazines Network, available at http:// www.allied-media.com/Publications/hispanic_latino_label.htm (accessed September 22, 2003). Solomon Moore and Robin Fields, “The Great White Influx,” Los Angeles Times, July 31, 2002, sec. A. David R. Roediger, The Wages of Whiteness (London: Verso, 1999), 7. Li Fellers, “South L.A. Church’s Troubled Waters,” Los Angeles Times, March 1, 2003, sec. B. Ibid. Ibid. Ibid. Jesse Katz and Richard A. Serrano, “Segregated Housing Sought at Jordan Downs,” Los Angeles Times, September 10, 1991. Ibid. Los Angeles Times, “The Tensions Between Blacks and Latinos: How Volatile?” June 17, 1991. Louis Sahagun, “Diversity Challenges Schools to Preserve Racial Harmony,” Los Angeles Times, February 14, 1999.

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69. Sandy Banks and Nicholas Shields, “Searching for Lessons in Jefferson High Melee,” Los Angeles Times, July 6, 2005, available at http://www.latimes.com/news/printedition/la-me-jefferson6jul06,1,7630224,print.story. 70. Ibid. 71. Ibid. 72. Christine Pelisek, “Avenues of Death: How Highland Park’s Latino gang targets African-Americans,” LA Weekly, July 15–21, 2005, available at http:// www.laweekly.com/ink/printme.php?eid=65873. 73. Ibid. 74. Ibid. 75. Ibid. 76. Joe Mozingo, “4 Los Angeles Latino Gang Members Convicted of Anti-Black Conspiracy,” Los Angeles Times, August 2, 2006. 77. Ibid. 78. The Siccness Network, available at http://www.siccness.net/vb/. 79. Camby Savelle, posting to “WHY DO WETBACC’S HATE BLACC PPL,” The Siccness Network, April 11, 2004, available at http://www.siccness.net/vb/ showthread.php?p=968461#post968461 (accessed April 11, 2003). 80. Cheeze, posting to “WHY DO WETBACC’S HATE BLACC PPL,” The Siccness Network, April 12, 2004, available at http://www.siccness.net/vb/showthread .php?p=969258#post969258 (accessed April 18, 2004). 81. phil, posting to “WHY DO WETBACC’S HATE BLACC PPL,” The Siccness Network, April 11, 2004, available at http://www.siccness.net/vb/showthread .php?p=968893#post968893 (accessed April 18, 2004). 82. BIG OSO LOC, posting to “LIL’ ROB,” The Siccness Network, August 5, 2003, available at http://www.siccness.net/vb/showthread.php?s=&postid=666354#post666354 (accessed August 7, 2003). 83. BIG OSO LOC, posting to “LIL’ ROB,” The Siccness Network, August 4, 2003, available at http://www.siccness.net/vb/showthread.php?s=&postid= 665154#post665154 (accessed August 7, 2003). 84. Neto, posting to “Crips Target of Prison Lockdown,” The Siccness Network, July 7, 2003, available at http://www.siccness.net/vb/showthread.php?s=&postid=630911# post630911 (accessed August 7, 2003). 85. NIMEXHICATLI, “cPixel.com,” cPixel.com, November 9, 2003, available at http://www.cpixel.com/searchp.asp?person=NIMEXHICATLI&rv=1 (accessed November 9, 2003). 86. Moore and Fields, “Great White Influx,” sec. A. 87. Michael Finnegan and Richard Fausset, “Latino-Black Alliance Seems to Be Forming,” Los Angeles Times, April 30, 2005, available at http://www.latimes.com/ news/local/la-me-blacks30apr30,1,4462423,print.story. 88. Jessica Garrison and Daniel Hernandez, “World Press Fits Villaraigosa Into the Big Picture,” Los Angeles Times, June 30, 2005, p. B1. 89. Finnegan and Fausset, “Latino-Black Alliance.”

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UNFIT TO VOTE: A RACIAL ANALYSIS OF FELON DISENFRANCHISEMENT LAWS* Keesha M. Middlemass

Most states exclude felons and former felons from the electorate and, through a series of inter locking laws, prevent them from casting ballots in most elections, even after the former felons complete their entire sentence. Former felons are restricted from voting because of a patchwork of state laws commonly known as felon disenfranchisement laws. These laws differ from state to state but achieve the same end result—the systematic restriction of felons from the voting booth. Scholarship investigating the racial effect of felon disenfranchisement laws regularly fails to evaluate the extent to which felon disenfranchisement laws affect the political clout of minority communities in comparison to the majority. This chapter is a preliminary analysis that compares three populations—those of blacks, Latinos, and whites. The data highlight the racial discrepancy of laws that are race neutral on their faces and the degree to which these laws affect minority communities. This research documents one of several collateral consequences of a felony conviction and the effect on communities of color. There are two parts of good government. One is the obedience of citizens to the law. The other part is the goodness of the laws which they obey. —Aristotle

INTRODUCTION Electoral laws, inextricably linked to the criminal justice system in forty-eight of the fifty states, perform an analogous function that effectively locks out felons from the voting booth. However, linking the criminal justice system to electoral laws presents a paradox: In many states, individuals deemed eligible for parole and probation are at the same time not considered qualified or competent to cast a ballot in federal and state * An earlier version of this chapter, entitled “Rehabilitated But Not Fit to Vote: A Comparative Racial Analysis of Disenfranchisement Laws” was published in SOULS: A Critical Journal of Black Politics, Culture and Society 8, no. 2 (2006): 22–39. Middlemass

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elections. Although a convicted felon may meet the requirements for release, as assessed by pardon and parole boards, sentencing courts, and departments of corrections, these same “rehabilitated” individuals are not considered fit to vote by election boards, state legislatures, and the U.S. Supreme Court. Felons, in fact, are one of two remaining groups of citizens excluded from casting a ballot.1 This issue is the result of a patchwork of state-sanctioned laws that systematically restrict a felon’s ability and citizenship right to participate in the democratic process. Felon disenfranchisement laws are triggered when an individual is convicted of a crime that the state categorizes as a felony. The loss of one’s voting rights is not part of the official conviction record; rather, it is an administrative consequence of a felony conviction that is disclosed to the felon after his or her release from confinement and that has broad implications for the former felon in terms of housing, education, employment/occupation, and health care, in addition to voting and electoral rights. Because the nonpenal restriction is placed on the former felon postincarceration, the collateral consequences related to a felony conviction acts much like a double punishment or a secondary sentence. An emerging body of research documents felon disenfranchisement laws, describing what Mark E. Thompson (2002) calls a “uniquely American” problem. Felon disenfranchisement laws create subcitizens who have little incentive to act like citizens because they are not treated as such. Former Minneapolis City Council Member Brian Herron is a second-class citizen. His felony conviction stripped him of the right to cast a ballot—perhaps one of the harshest penalties resulting from his crime2—and he is not alone. Millions of American citizens have lost their citizenship rights because of a felony conviction. Civil rights advocate and exfelon, Jazz Hayden, argues that while in prison you lose your liberty, not your citizenship; however, citizenship rights are removed because of a felony conviction, and the consequences of this course of action are felt well beyond the time the former felon has paid his or her legal debt to society.3 Although felon disenfranchisement laws are constitutionally permissible,4 they are still an anomaly and a blight on America’s creed of second chances. For instance, the trend of American constitutional amendments, legislative actions, and judicial decisions is directed toward expanding the franchise, not restricting it. Second, social policy makes former felons continuously guilty, penalizing them for past and potential future behavior. Former felons, on release from prison, are deemed a threat to the electoral process but not necessarily a threat to society. Third, there is no evidence that losing the right to vote deters future crimes (see Keyssar 2000: 162). In actuality, the effect of felon disenfranchising laws reflects poorly on America’s commitment to its own democratic values (see Uggen and Manza 2002). Felon disenfranchisement laws separate those who have political rights from those who do not based on past behavior and on whether or not an individual violated prevailing social norms. The exclusion of former felons from voting is not even based on the actual crime committed (see Keyssar 2000). Though the phrase “civil death” is commonly used to describe nineteenth-century punishment of felons, the same outcome persists into the twenty-first century: Once removed from society as a result of a felony conviction, the felon continues to have limited choices, and his or her civil rights are

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severely constrained by a set of interlocking policies that regulate a former felon’s ability to reintegrate into society. Most notably, felon disenfranchisement laws have a pronounced and negative effect on minority electoral participation. Previous scholarship explores the racial effect of felon disenfranchisement laws but fails to evaluate the effect these laws have on multiple communities. This research compares the political ramifications of felon disenfranchisement laws of three populations—blacks, Latinos, and whites. The focus is on the eighteen states that do not automatically reenfranchise felons on their release from prison. Most of the states in this study have sizeable minority populations and represent a broad swath of America, from the South to the North and from the East to the West and several points between. The eighteen states include Arizona, Arkansas, Minnesota, Nebraska, Nevada, North Carolina, South Dakota, Florida, Kentucky, Mississippi, Virginia, Alabama, Delaware, Maryland, Missouri, Tennessee, Washington, and Wyoming.5 Restoring one’s right to vote is technically possible in each state; however, the procedures designed to reenfranchise felons are in reality so cumbersome that they are equivalent to permanent disenfranchisement. Therefore, even though some studies point to fewer than eighteen states that permanently deny voting rights to felons (see Cosgrove 2004; Mauer and Kansal 2005), Arizona, Arkansas, Minnesota, Nebraska, Nevada, North Carolina, and South Dakota are included here because former felons must provide evidence of eligibility, such as discharge papers or a certificate of eligibility obtained from the sentencing court, before they are eligible to register to vote. Because the discharge procedures are so complicated and must be overcome to reinstate civil rights, it is argued that the addition of these four states is appropriate, as the laws in these states are tantamount to permanent disenfranchisement (see Handelsman 2005). Therefore, eighteen states are included in a comparative racial analysis to study both felon disenfranchisement laws and some of the resulting political implications of these laws, to answer two related research questions: What effect does felon disenfranchisement laws have on the electorate in the eighteen states? and What effect do these laws have on minority communities in comparison to the majority? THE CONVERGENCE OF VOTING RIGHTS AND THE CRIMINAL JUSTICE SYSTEM Criminal disenfranchisement policy in the United States is located squarely at the intersection of voting rights and criminal justice—and it is tainted by the racial history of both policy areas in the United States. (Ewald 2002: 1054)

The connection between crime and the loss of civil rights has a long history (see Keyssar 2000). In medieval Europe, the loss of one’s civil rights would result when individuals were found guilty of committing “infamous crimes” or crimes of “moral turpitude” (Ewald 2002). Similar disenfranchising practices were later adopted in England, where criminals were stripped of their rights to transfer property and access

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the courts. English colonists argued that those who committed “infamous crimes” should be restricted from the polity based on the rationale that if one failed to adhere to customary behaviors, then disenfranchisement was a proper punishment, in addition to fines or jail time. The moral argument justified the use of these laws, and felons were easy targets, as they were convicted of violating the social contract. Social contract theory posits that if you break the rules of society you forfeit some of your rights within that society, and often a single transgression constitutes a repudiation of the entire social contract. On release from their sentences, social contract theory indicates that former felons enter into a second social contract; however, the problem with this argument is that the felon is no longer an equal party in negotiating the basis of the second contract because he or she does not have equal standing as a full citizen. Former felons reside in an inferior bargaining position, making the second contract unconscionable because of the unequal status of the two parties (Johnson-Parris 2003). Furthermore, because the U.S. criminal justice system and related policies emphasize retribution and not rehabilitation or incorporation back into society, the only goal served by felon disenfranchisement seems to be punishment. Harvey (1994) explains that disenfranchisement laws cannot be justified when based on one of the four traditional rationales for punishment: rehabilitation, deterrence, retribution, and incapacitation. If rehabilitation is one of four goals and the felon completes his or her sentence on release from prison, then society is responsible for proving guilt of a second crime beyond a reasonable doubt. Society does not have the right to punish the former criminal in advance on the basis of a probability of future behavior (see Harvey 1994). Demleitner (2000) argues that the American policy of disenfranchising felons appears to have the singular of permanent punishment, and that electoral and citizenship rights related to rehabilitation are not even a consideration. Retribution satisfies the emotional and moral needs of justice; however, a lasting denial of civil rights turns the exoffender into a permanently dishonored member of society who is never forgiven for his or her crimes (Demleitner 2000). This belief is demonstrated by how American states developed the list of offenses that mandate the denial of voting rights. The list of felonious crimes developed randomly when many states rewrote their state constitutions in the latter part of the nineteenth century and into the early part of the twentieth century. Several court cases reinforced the concept of disenfranchising felons. The courts ruled that administratively, state legislatures had the power to determine who could and could not vote,6 but the randomness by which the list of offenses was crafted demonstrates that felon disenfranchisement laws are a social construct designed for the long-term exclusion of offenders. Felon disenfranchisement laws are the one clear example of how both the electoral and judicial systems are burdened with a history of racial injustice and how the two systems work in tandem to create a stratified society (Demos 2003). The lists of “infamous crimes” and disenfranchising crimes were used throughout the South as a means to ban newly freed slaves from participating in the democratic process (see Demleitner 2000; Keyssar 2000). The hardening of racial exclusions related to voting developed alongside the criminal justice system, and many southern states believed that criminal disenfranchisement was the most effective method of excluding blacks from the polity (Shapiro 1993), thereby protecting white political,

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social, and economic power (see Lieberman 2005). Between 1890 and 1910, many southern states rewrote their constitutions, tailoring their criminal laws to preexisting voting restrictions to increase the effect of disenfranchising blacks (see Shapiro 1993). By 1920, many southern states included as felonies lesser offenses that they believed that African American men were more likely to commit, including theft, vagrancy, wife-beating, living in adultery, larceny, bribery, burglary, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement, or bigamy, but they did not include crimes such as murder or assault, as they felt that blacks and whites committed these crimes at equal rates (Shapiro 1993: 541; Keyssar 2000: 162).7 Over the last three decades, a host of legal scholars and social scientists have pointed out how felon disenfranchisement laws deprive millions of Americans of their right to vote. Still relevant today is the argument laid out by Itzkowitz and Oldak (1973), who state that disenfranchisement laws: 1) increase the social distance of the felon from society by branding the individual; 2) emphasize the stigma attached to being a felon at election time, reminding the felon that he or she is not a full citizen; 3) weakens the felon’s ties to the community, reinforcing his or her second-class level in society; 4) forbids individuals from participating in the democratic part of society; 5) reaffirms feelings of alienation and isolation (both detrimental to the reformation process and rehabilitation); and 6) reinforces the idea that the felon is unfit (a blow to already fragile self-esteem). The idea behind felon disenfranchisement laws was to degrade and isolate the criminal from society, preventing felons from building community ties and the habits of law-abiding citizens, thereby relegating him or her to always being on the outside of society. Although published at a time when the majority of the incarcerated population was still white, the Itzkowitz and Oldak (1973) article represents a candid picture of the history of infamy, outlawry, and civil death in Europe and showa that the adoption of felon disenfranchisement laws was based on the idea that “each sanction was imposed for violations of social norms, legal or moral, and each deprived the offender of whatever civil rights the society offered its inhabitants” (Itzkowitz and Oldak 1973: 726). Ewald (2002), in contrast, places his argument squarely in the twenty-first century, stating that “criminal disenfranchisement policy in the United States is located squarely at the intersection of voting rights and criminal justice—and it is tainted by the racial history of both policy areas in the United States” (1054). Ewald states that the United States is the only democracy that indefinitely bars so many offenders from voting and the only country to have such sweeping felon disenfranchisement policies. In his critique of felon disenfranchisement laws, Ewald (2002) outlines current state laws barring criminal offenders and shows that the circumstances of current policies vary widely, characterized by the U.S. Justice Department as a “national crazy-quilt of disqualifications and restoration procedures.”8 Within the states, there is a deep lack of consensus regarding the appropriate penalties and definitions of what constitutes a crime that restricts one’s voting rights, and this uncertainty and ambiguity is further complicated because such laws vary widely from state to state. The disproportionate racial effect of felon disenfranchisement laws is one element of why these laws are bad public policy; however, the inconsistencies underscore the

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failures felon disenfranchisement laws experience in meeting standards of consistency and proportionality. PUBLIC OFFICIALS AND PUBLIC POLICY In an analysis of consistency and proportionality, Demleitner (2000) examines the policy differences between the German model of punishment and treatment of former felons and how America and its respective states treat former felons and voting rights. Although the American and German models began with a shared vision in the early 1960s, the United States later imposed different policies regarding voting rights (Demleitner 2000: 765). Demleitner describes how the German model of criminal justice, which is historically based in the values of continental European countries, focuses on individual honor, and how individuals lose their right to vote not because of the sentence imposed but, rather, through their dishonorable conduct (757). The German system emphasizes the idea that rehabilitation is a given, and thereby, the loss of voting rights is temporary in nature, signaling to the newly released felon that society believes in their potential (and hopefully eventual) rehabilitation. Furthermore, the German criminal code makes the denial of the franchise as part of the optional collateral sentencing; therefore, the deprivation of the right to vote is never automatic following a conviction and is not part of the official record of punishment.9 This is not the American system, in which felon disenfranchisement and other collateral consequences of a felony conviction are instituted after the criminal punishment is delivered and are an administrative punishment. American policies, which are created and implemented by state governments, rather than federal law, as is the case in Germany, restrict offenders from voting via the penal system. This allowed the two countries’ felon disenfranchisement laws to develop in profoundly different ways. The notion of rehabilitation collapsed in the 1970s in America, when retribution, incapacitation, and deterrence replaced rehabilitation as the goal. This dramatic shift in prison culture and purpose altered the characteristics of the incarcerated population in the United States, and the focus was switched to excluding offenders from society by justifying felon disenfranchisement laws in terms of keeping the ballot box pure, while at the same time creating a permanent set of social and civic outcasts. In many states, felon disenfranchisement laws purposely restrict citizens convicted of a felony from voting without doing a threat assessment to determine whether the individual poses a risk to the electoral process. Even if rehabilitated, the sins of a felon are continually punished because of his or her status as an offender—not for the specific crime committed (see Reback 1973). Regardless of the state, felon disenfranchisement laws have similar characteristics. They are overinclusive because by their very nature they restrict broad classes of felons without differentiating between criminal behavior, and they are a part of the collateral consequences of a conviction but are not in proportion to the crime or time served. At the same time, felony disenfranchisement laws are underinclusive, as states disenfranchise former felons based on a definition of a felony and not necessarily for violating laws that are tied, directly or circuitously, to the franchise. Ewald (2002) argues that when former felons are banned for life from voting, this overinclusiveness fails the proportionality test.

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Temporary felon disenfranchisement during the period of imprisonment meets the standard of proportionality, whereas lifetime bans fail miserably. The underinclusive nature of felon disenfranchisement laws is compounded by the fact that over 99 percent of felons do not commit election based crimes. There are at least three troubling facts about the over- and underinclusiveness of felon disenfranchisement laws: first, most offenders do not pose a risk to the integrity of public elections or to the foundation of democratic principles that help elect government representatives; second, regardless of their crimes, to protect society against the few that might abuse the franchise, all felons are restricted—a first time nonviolent felony conviction and a murderer are both restricted from voting; and third, the sad irony is that most election-based crimes, such as buying votes, election fraud, vote tampering, or electioneering, are misdemeanors. Therefore, one may illegally tamper, interfere with, impede, or obstruct the election process and yet still qualify to vote in many states. The continued use of felon disenfranchisement laws is possible because they are supported by elected officials, who do so for a variety of reasons. The most often repeated reasons that elected representatives support the restriction of former felons from voting include: a) the felons cannot be trusted; b) they would have the opportunity to elect procrime/profelon candidates; c) they have been proven to be disloyal to the republic; d) they will interfere with the electoral process; e) they do not vote; and f ) they have broken the social contract.10 In addition to these factors, representatives and other policymakers claim that it is too difficult to bring ballots into jail and that society does not want untrustworthy people voting. According to Thompson (2002), these justifications lack common sense. Moreover, they are ineffectual and vulnerable to attack, yet they are the reasons most public officials repeat when questioned about the continued use of felon disenfranchisement laws. These arguments, however, are being challenged, and the illogical nature of felon disenfranchisement laws is finally attracting attention. Following the 2000 presidential election, media attention brought greater awareness to the issue of felon disenfranchisement laws. This attention follows years of scholarly and legal arguments articulating the unreasonable and overinclusive nature of these laws. The debate was reignited during the 2004 presidential election and jump-started a national debate about whether or not former felons should be allowed to vote. Furthermore, the glaring racial disparities of these laws came to the forefront, exposing the vast number of black men who have been disenfranchised because of a felony conviction. A variety of editorial commentary surfaced after the 2000 and 2004 presidential elections, which led to in-depth analyses of the ramifications of these laws.11 At the same time, state legislatures from Florida to Washington faced the daunting political and administrative realities of how to determine which felons could and could not vote, while attempting to simplify the process of restoring felon’s constitutional right to vote after the completion of his or her sentence. It was found that in some states the laws are so convoluted and deeply flawed that the election officials and other policymakers responsible for administering the laws were unable to do so in an adequate or fair and consistent manner.12 The effect of felon disenfranchisement laws is only now becoming clear, and because of the sheer number of offenders and individuals who have been labeled as

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felons, the number of former felons disenfranchised from the electoral process will continue to grow. Moreover, because incarceration rates continue to climb, even at times of low crime rates, coupled with uncontrolled spending on corrections and the increased use of mandatory minimum prison sentences, three-strike and habitual offender laws,13 zero tolerance, truth in sentencing, the failed war on drugs, and structural forces (see Jacobson 2005), the number of individuals disenfranchised will grow unabated. If trends continue, studies estimate that 30–40 percent of black males will lose their right to vote for part of their adult lives (see Mauer 2000). Not only do the trends demonstrate the racial disparities and effects in minority communities in terms of who is disenfranchised, but they also skew heavily toward poor communities.14 Low estimates point out that 13 percent of all black men, a rate seven times the national average, are currently disenfranchised (Allard and Mauer 2000). The conclusions drawn from multiple sources are troubling; often the analysis is analogous to the sordid history of racial injustice in the United States—access to the ballot is denied on the basis a felony conviction, which captures an excessive number of black men. Additional sanctions such as requiring felons to pay restitution are comparable to the poll tax of yesteryear, which disproportionately affected poor and minority communities and that continues to do so.15 Calls for an end to felon disenfranchisement laws began to reverberate following the 2004 presidential election, and in some instances states have addressed the issue of felons voting and of restoring their civil rights.16 The continued outpouring of intellectual, academic, and public criticism has brought greater awareness to the issue of felon disenfranchisement laws. STATE-LEVEL ANALYSIS To understand state differences and the political effect of felon disenfranchisement, a cross-sectional analysis is provided to compare each state against other states with similar felon disenfranchisement policies. This sets the stage to examine the racial demography as it relates to the convergence of the criminal justice and electoral systems; however, because of inconsistent state reporting and data collection, as well as conflicting data sources, the preliminary analysis does not demonstrate causality. Rather, the data indicate that the racial composition of states explains the racial composition of those disenfranchised because of a felony conviction. The available data provide a compelling picture about felon disenfranchisement laws and their effect on potential minority communities and individual voters. Former felons, in most states, are restricted from voting, and the restrictions vary depending on the state—forty-eight states and the District of Columbia, to some extent, place limitations on former felons’ constitutional right to vote. The only two states that allow individuals to vote while incarcerated are Vermont and Maine, which are two relatively homogenous states in racial terms. Of the forty-eight states that restrict voting rights, twelve states, plus the District of Columbia, allow felons to vote on release from confinement and while on probation or parole,17 five states allow felons to vote while on probation,18 fourteen states allow felons to vote after completion of their entire sentence and have this right automatically restored,19 two

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states allow felons to vote after completion of maximum time sentenced,20 nine states require evidence of eligibility to vote,21 six states require felons to obtain a pardon from the governor before their civil rights are restored,22 three states require felons to obtain a pardon and adhere to administrative requirements before voting rights are restored,23 and five states disenfranchise some felons permanently.24 In total, thirty states, plus the District of Columbia, automatically restore voting rights to felons after completion of their full sentence, including parole, probation, restitution, and other court mandates (i.e., drug and alcohol treatment, anger management classes, community service, family counseling). Although the effect of felon disenfranchisement laws is felt nationwide, the focus of this study is on the eighteen states that do not automatically restore the civil rights of felons on completion of sentence. These states require felons to maneuver through a cumbersome administrative process to restore their rights. Eight states require felons to obtain an eligibility certificate from the sentencing court, approval from the Department of Corrections, or discharge from the Board of Pardons, the Secretary of Corrections, the State Board of Parole Commissioners, or a number of other supervisory bodies who maintain authority over felons once they are released from prison,25 whereas eight other states require a pardon from the governor.26 Conspicuously absent from the list of eighteen states are several states considered punitive: California, Georgia, Louisiana, Pennsylvania, and Texas, all of which have large death row populations and huge prison complexes that house thousands of felons, which populations are disproportionately minority; however, these punitive states automatically restore voting rights on completion of entire sentence. As shown by Demleitner (2000), pardons and administrative remedies are not effective ways of restoring voting rights, and in fact, they have a numerically negligible effect on the restoration of voting rights. Often, requiring a felon to receive a pardon from the governor is tantamount to permanent disenfranchisement. Furthermore, the debate between permanent disenfranchisement and temporary exclusion falls to the wayside because most states have shown that they strive to control access to the ballot box via long-term political exclusion of offenders on a permanent—not temporary—basis. Table 15.1 describes the restoration process felons must follow in the eighteen states to regain their voting rights. The data for Table 15.1 are compiled from several different sources, including The Sentencing Project, U.S. Department of Justice (Civil Rights Division), and the National Conference of State Legislatures 2004 Conference.27 The southern states have some of the most cumbersome set of laws that felons must negotiate28; however, the remaining states, even without the overt historical connection to slavery, Black Codes, and Jim Crow laws, are no better, as they require certificates of eligibility and waiting periods. In some instances, states place other restrictions on former felons before they are eligible to apply for the restoration of their civil rights. Table 15.2 contains information about state felon disenfranchisement laws. The data were complied from the following sources: the Secretary of State Web site for each respective state, the State Board of Elections Web site for each respective state, the Sentencing Project: Felony Disenfranchisement Laws in the United States

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(http://www.sentencingproject.org/pdfs/1046.pdf), Voting Rights Restoration Process by the National Conference of State Legislatures (http://www.ncsl.org/programs/ legman/elect/voterights.htm), Demos: About Felon Re-enfranchisement: State Report Cards (http://www.demos.org/page26.cfm), Sentencing Project and Human Rights Watch: “Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States” (http://www.hrw.org/reports98/vote/usvot98o.htm), and Margaret Colgate Love: Relief From the Collateral Consequences of a Criminal Conviction, February 2006 (http://www.sentencingproject.org). The number of sources alone indicates the vast number of places that information is available, but it also underscores the challenges faced by those wanting to restore their voting rights. Information available about a state’s felon disenfranchisement laws is inconsistent, and therefore multiple sources must be referenced to determine what is most accurate and timely. State felon disenfranchisement laws are then combined with data about the number of individuals affected. As indicated in Table 15.3, the more racially diverse the state’s population, the higher the incarceration rates for minorities, whereas Table 15.2 indicates that the higher the state’s black and Latino populations, the harsher penalties a convicted felon faces to restore his or her voting rights, although this pattern is not uniform. The Table 15.3 data come from the National Corrections Reporting Program,29 which is an individual-level state-specific data set prepared by the Bureau of Justice Statistics and stored by the National Archive of Criminal Justice Data at the University of Michigan.30 The data correspond to the total number of new commitments over 12 months, which is how states define and differentiate between felonies and misdemeanors. Table 15.3 shows new commitments and admission rates of blacks, Hispanics, and whites. States with a higher proportion of minorities tend to incarcerate them well above the proportion of the state’s minority population. The states of Alabama, Florida, Maryland, Mississippi, North Carolina, Tennessee, and Virginia incarcerate more blacks than whites, with Maryland admitting almost 3.5 times more blacks than whites, Mississippi 1.5 times more, and North Carolina and Virginia admitting nearly double the number of blacks than whites into their prisons based on a felony conviction. Racial data based on a felony conviction and new commitments over 12 months for three of the sixteen states, Arizona, Delaware, and Wyoming, are not available at this time. Table 15.4 contains several different factors used to determine voting patterns, such as citizenship, registration rates, urban population percentage, and racial makeup of the population. Taken as a composite sketch of the potential voting population, a state with a large minority population (less than 80 percent white) is likely to have higher incarceration rates per 100,000 people. States such as Alabama, Arizona, Delaware, Mississippi, and Nevada, which are all racially diverse, have high incarceration rates per 100,000 people. Furthermore, urban states (over 80 percent urban, as defined by the Census Bureau) with racially heterogeneous populations also tend to have higher incarceration rates, such as Arizona, Delaware, Florida, Maryland, and Nevada. States with low incarceration rates per 100,000 people, such as Minnesota and Washington, have less urban and less racial diversity. In these states, the punitive

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nature of the felon disenfranchisement laws may be a cultural phenomenon and be a response to crime rather than just a racial phenomenon. The preliminary analysis explores important connections between felon disenfranchisement laws and the racial disparities found in who is captured by such laws. As Table 15.1 demonstrates, felon disenfranchisement laws are race neutral on their face, but combined with the data presented in Tables 15.2 and 15.3, it is clear that the criminal justice system is capturing minorities in greater numbers. The race-neutral voting rights policy has a racial effect because of the criminal justice system. Regardless of region, urbanization, or racial diversity, states are disenfranchising thousands of citizens based on a felony conviction, which affects community and civic engagement. The data in Table 15.3 point out the discrepancies between new white and black felony admissions to the penal system. The penal system becomes, in effect, the “gatekeeper” for the electoral system. Table 15.3 indicates that the racial composition of each state reflects incarceration rates: The more diverse a state’s population, the higher number of individuals who are incarcerated. Combining all of the data, preliminary findings about the racial effect of felon disenfranchisement laws across states highlights the racial discrepancy of laws that are race neutral on their face, and the degree to which they affect the potential political participation of minority communities. The data also demonstrate the extent to which disenfranchisement laws affect the entire electorate, especially in communities in which a large number of former felons reside. This comparative perspective points to the disturbing fact that regardless of race, urbanization, or region, felon disenfranchisement laws are a determinant of the voting rights of millions—not only those who are about to be released from jail but also those felons who are already living on the outside. Even though former felons are not likely to vote, based on traditional socioeconomic indicators and evidence (individuals that lack education, income, and job stability tend not to vote), the implications for the political rights of the black community are measurable. The voting rights of Latinos can only be calculated based on anecdotal evidence and not the statistics offered here; however, the Community Service Society of New York City argues that each Latino voter is voting for approximately four other people, whereas each black voter is voting for approximately three other people. The challenges faced by the Latino community are complicated because of immigration status and citizenship issues, but these two minority communities are both adversely affected by felon disenfranchisement laws. IMPLICATIONS AND CONCLUSIONS Alex Friedmann, who had been out of prison for four years after serving a ten-year sentence, while testifying at hearings held by the state Senate Judiciary Committee in Tennessee, stated: “I was not sentenced to life in prison, but if I’m not given my voting rights back, that would amount to a life sentence of not voting.” Through the determination of state legislators and governors, combined with state constitutional conventions, state electoral laws were institutionalized to deter

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felons from voting. Demos (2003) describes how felon disenfranchisement laws are a product of the “perfect storm,” with the criminal justice system working in concert with the electoral process. Felon disenfranchisement laws are an overreaching response to deal with (potential) voter misconduct, and supporters of such laws have failed to demonstrate why and how past criminal infractions relate to the electoral process, and why election laws are not sufficient to deter fraud (see Thompson 2002). The right to vote is an important right, and its importance has been proven through many judicial mandates, legislative actions, constitutional amendments, and federal statutes. Scholars claim that disenfranchisement laws deserve closer judicial scrutiny because of their potential to affect the black vote (Shapiro 1993; Harvey 1994). Indeed, the heroic efforts used to overcome past racial injustices are needed to dismantle current policy. This is the case because tradition and history are used to implement continually felon disenfranchisement laws; however, tradition and history are not adequate justifications for the continued use of such laws. These laws should be reevaluated in light of contemporary values in modern democratic societies (much like the death penalty). NOTES 1. Those deemed mentally incompetent by the state are also excluded from casting a ballot in most elections. 2. Minneapolis, Minnesota, Star Tribune, “House Bill Would Expedite Felons’ Voting Rights,” Conrad deFiebre (March 1, 2005). 3. Editorial commentary in The Christian Science Monitor, “Voting Rights for ExFelons” (March 1, 2005). 4. See Richardson v. Ramirez [418 U.S. 24 (1974)] challenging felon disenfranchisement laws under Section 2 of the Fourteenth Amendment, permitting states to disenfranchise individuals without sacrificing congressional representation despite Section 1’s requirement that “no state shall . . . deny to any person . . . the equal protection of the laws.” Some scholars argue that Richardson effectively closes the door on an equal protection argument finding felon disenfranchisement laws unconstitutional (see Shapiro 1993). 5. New Mexico and Iowa are not included here because of recent changes in their respective electoral laws reenfranchising felons. Although Nebraska recently changed its laws to enfranchise former felons, they still must wait two years before being eligible to apply for a “warrant of discharge,” which is equivalent to a certificate of discharge or certificate of eligibility. That is why Nebraska is included. 6. Davis v. Beason [133 U.S. 333 (1890)] upholds felon disenfranchisement laws and the decision that such laws are within the discretion of the state legislature to make; the state is able to disenfranchise those found guilty of criminal activity. Murphy v. Ramsey [114 U.S. 15 (1885)] upholds felon disenfranchisement laws and a state’s right to use them to regulate the franchise and the decision that political rights are a privilege, which can be regulated by the state. Oregon v. Mitchell [400 U.S. 112, 139 (1970)] overturns the decision from Murphy, that the franchise is no longer considered a privileged right. 7. See also Ratliff v. Beale [74 Miss. 247, 265–266 (1896)] for a list of offenses that the Mississippi Supreme Court deemed blacks were more likely to commit than whites,

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10.

11. 12. 13.

14. 15.

16.

17. 18.

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and Williams v. Mississippi [170 U.S. 213 (1898)] for the U.S. Supreme Court’s response. Margaret Colgate Love and Susan M. Kuzma, United States Department of Justice, Civil Disabilities of Convicted Felons: A State-by-State Survey (1996). In Germany, the collateral consequences of a criminal conviction are that offenders are subject to having their voting rights removed if the specific law under which the offender is sentenced explicitly permits the court to impose additional consequences (Demleitner 2000: 760). However, over 99 percent of felons are not convicted of electoral offenses, and felon disenfranchisement laws fail to consider that one does not need to be a felon to commit electoral crimes. See the Miami Herald’s series of Investigative Reports by Debbie Cenziper and Jason Grotto (October–December 2004). Olympia, Washington, The Olympian, “House Bill Would Ease Felon Voting Rule,” Brad Shannon (March 1, 2005). If a person has committed two or three previous felonies or numerous misdemeanors, they may be subject to being labeled as a habitual offender. If labeled a habitual offender, increased penalties may apply to subsequent crimes committed. The crime itself may also be ranked in a more serious class if it is committed by a habitual offender. The amount of time served may also increase, with less opportunity for reduction of sentences for good behavior and similar reductions. Habitual offender laws vary by state. Editorial commentary in The Washington Post, “Debt Paid, But a Right Still Denied” by Salima Siler Marriott and Michael A. Blain (February 27, 2005). The American Civil Liberties Union regards the requirement of paying fines and restitution as a modern poll tax [(Olympian, Washington, The Olympian, “Tracking of Felon Voting Flawed” by Brad Shannon (February 6, 2005)]. The Twenty-Fourth Amendment (ratified January 23, 1964) abolished poll taxes in presidential and congressional elections, whereas the Voting Rights Act of 1965 abolished the use of poll taxes in all other elections (state, local, and other electoral subdivisions such as education elections). The Miami Herald’s investigation of Florida’s felon disenfranchisement laws and its secret clemency procedures as well as analytical reports produced by various organizations, such as The Sentencing Project, Human Rights Watch, Unlock the Block, DEMOS, Soros Open Society Institute, and The Brennan Center for Justice at NYU School of Law, among others, led to changes in Florida. The states of Nebraska and Iowa have recently changed their laws, allowing felons to vote. These states include Hawaii, Illinois, Indiana, Massachusetts, Michigan, Montana, New Hampshire, North Dakota, Ohio, Oregon, Pennsylvania, and Utah. California, Colorado, Connecticut (in Connecticut, felons must pay all court fines or restitution), New York (when one is convicted of a felony with no prison time attached to the conviction [e.g., with a suspended sentence], voting rights are not negatively affected, but if one is incarcerated, voting rights are automatically restored on expiration of the maximum time sentenced or on discharge from parole), and South Dakota (the right to vote is restored on termination of prison sentence and parole). Alaska, Georgia, Idaho, Iowa, Kansas, Louisiana, New Jersey, New Mexico, Oklahoma, Rhode Island, South Carolina, Texas, West Virginia, and Wisconsin.

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20. The two states are New York (applies to convicted felons who are incarcerated) and Oklahoma. 21. The states include Arizona (first offense automatically restored), Arkansas, Minnesota, Nebraska (by a 36–11 vote, the Nebraska Legislature overrode a veto by Governor Dave Heineman of a disenfranchisement reform bill; the vote eliminates the state’s permanent ban on voting by people with felony convictions and will automatically restore voting rights two years after completion of sentence. The Lincoln Journal Star, “Legislature Overrides Veto,” by Nate Jenkins [March 17, 2005]), Nevada and North Carolina. Three other states have varying laws for different offenders but also require a certificate of eligibility: South Dakota, Tennessee (which has different set of rules for those convicted of a felony between July 1, 1986, and June 30, 1996, and after June 30, 1996), and Washington (the restoration process differs for those convicted of a felony before and after 1984). Tennessee recently changed its laws, which are still cumbersome, in an attempt to streamline the system. 22. The states include Alabama, Delaware, Florida (the average time to regain voting rights is eight years and entails a long and arduous process), Iowa (Governor Vilsack issued an executive order in 2005 automatically restoring the voting rights of all exfelons, a process that will continue on a monthly basis on the completion of sentence), Kentucky (the Department of Corrections must inform and aid eligible offenders), and Maryland (felons are eligible after a three-year waiting period following the completion of their sentence). 23. The states include Mississippi (requires each felon to receive a certificate of discharge), Virginia (felons must apply for restoration of their rights at circuit court and are only eligible to apply for restoration of rights five years after completion of sentence and if all court costs and restitution is paid; however, drug offenders must wait seven years. All circuit court decisions are subject to the governor’s approval), and Wyoming (each felon must submit a written application requesting a certification authorizing the restoration of their civil rights). 24. The states include Delaware (a violent felony conviction—murder, manslaughter, any felony constituting a sexual offense, and abuse of elected office—results in permanent disenfranchisement), Maryland (felons convicted of a second violent felony and all felony convictions resulting from buying or selling votes are permanently disenfranchised), Missouri (permanently disenfranchises individuals convicted of a felony related to the franchise), Tennessee (felony convictions before July 1, 1986, are permanently disenfranchised, as well as those for convictions for murder, aggravated rape, treason, and voter fraud after June 30, 1996), and Washington (which disenfranchises all those felons convicted prior to 1984). 25. The states include Arkansas, Arizona, Minnesota, Nevada, North Carolina, South Dakota, Tennessee, and Washington. 26. The states include Alabama, Delaware, Florida, Kentucky, Maryland, Mississippi, Virginia, and Wyoming. 27. Tabulating data from different sources created several instances of conflicting and vastly different interpretations of what states are doing. In cases of contradictions, I went with the most accurate data, double-checking against a state’s constitution and statutes. Only after checking a third source did I conclude which data were most accurate. When there were conflicting data in terms of a state’s policy, I used the most up-to-date and verifiable data. 28. Alabama, Arkansas, Delaware, Florida, Kentucky, Maryland, Mississippi, North Carolina, Tennessee, and Virginia.

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29. Because of the inconsistent nature of racial data gathering across the states, there are several instances of missing data. Most notably, data on Hispanic Admissions are questionable, at best. 30. http://www.icpsr.umich.edu/nacjd.

REFERENCE LIST Allard, Patricia, and Marc Mauer. 2000. Regaining the vote: An assessment of activity relating to felon disenfranchisement laws. Washington, DC: The Sentencing Project. Cosgrove, John R. 2004. Four new arguments against the constitutionality of felony disenfranchisement. Thomas Jefferson Law Review 26:157. Demleitner, Nora V. 2000. Continuing payment on one’s debt to society: The german model of felon disenfranchisement as an alternative. Minnesota Law Review 84:753. Demos: A Network for Ideas and Actions. 2003. Democracy denied: The racial history and impact of disenfranchisement laws in the United States. New York: Demos Ewald, Alec C. 2002. “Civil death”: The ideological paradox of criminal disenfranchisement law in the United States. Wisconsin Law Review 1045. Handelsman, Lauren. 2005. Giving the barking dog a bite: Challenging felon disenfranchisement under the Voting Rights Act of 1965. Fordham Law Review 1875, 1940. Harvey, Alice E. 1994. Ex-felon disenfranchisement and its influence on the black vote: The need for a second look. University of Pennsylvania Law Review 114:1145. Itzkowitz, Howard, and Lauren Oldak. 1973. Restoring the ex-offender’s right to vote: Background and developments. American Criminal Law Review 11:695. Jacobson, Michael. 2005. Downsizing prisons: How to reduce crime and end mass incarceration. New York: New York University Press. Johnson-Parris, Afi S. 2003. Felon disenfranchisement: The unconscionable social contract breached. Virginia Law Review 89:109. Keyssar, Alexander. 2000. The right to vote: The contested history of democracy in the United States. New York: Basic Books. Lieberman, Robert C. 2005. Shaping race policy: The United States in comparative perspective. Princeton, NJ: Princeton University Press. Mauer, Marc. 2000. Felon voting disenfranchisement: A growing collateral consequence of mass incarceration. Federal Sent. R. 12:248. Mauer, Marc, and Tushar Kansal. 2005. Barred for life: Voting rights restoration in permanent disenfranchisement states. Washington, DC: The Sentencing Project. Reback, Gary. 1973. Disenfranchisement of ex-felons: A reassessment. Stanford Law Review 25:845. Shapiro, Andrew L. 1993. Challenging criminal disenfranchisement under the Voting Rights Act: A new strategy. Yale Law Journal 103:537. Thompson, Mark E. 2002. Don’t do the crime if you ever intend to vote again: Challenging the disenfranchisement of ex-felons as cruel and unusual punishment. Seton Hall Law Review 33:167. Uggen, Christopher, and Jeff Manza. 2002. Democratic contraction? Political consequences of felon disenfranchisement in the United States. American Sociological Review 67:777–803.

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Table 15.1 Restoration of Voting Rights (Eighteen States, by Region) Region/State

Restoration Process

The South (as defined by the Census) Alabama Arkansas Delaware

Florida Kentucky Maryland

Mississippi

North Carolina

Tennessee

Virginia

Pardon from the Board of Pardons and Paroles. Automatically restored with a full discharge from sentence or a pardon. Felons must provide evidence of eligibility. Permanent disenfranchisement: murder, manslaughter or any felony constituting a sexual offense or an offense against public administration involving bribery, improper influence or abuse of office. Pardon from the Board of Pardons OR five years after expiration of sentence: Expiration of sentence means satisfactory completion of imprisonment, probation, and parole and satisfaction of all financial obligations required by the sentence, including restitution. A full pardon, conditional pardon, or restoration of civil rights from the Governor of Florida. Pardon from the Governor. 2 or More Felonies: Pardon from the Governor. Permanent Disenfranchisement: Convicted of buying or selling votes, permanently prohibited from voting in Maryland. Pardon or an executive order issued by the governor on discharge from probation. The right to vote may also be restored by a two-thirds vote of the state legislature. Regain the right to vote once unconditionally discharged from prison, probation, or parole or discharged from a suspended sentence, or upon unconditional pardon or the satisfaction of all conditions of a conditional pardon. The agency having jurisdiction at the time of unconditional discharge is required to issue a certificate to the clerk of the General Court of Justice in the county where convicted, and that clerk shall then file the certificate with the original record. Convicted of a felony on or after May 18, 1981: Ineligible to vote unless civil rights have been restored by the governor. Permanent Disenfranchisement: Persons convicted of murder, aggravated rape, treason, or voter fraud after July 1, 1986, or of rape after June 30, 1996, are ineligible to have their voting rights restored. Other than permanent disenfranchisement: May petition probation, parole, or authority that supervised or incarcerated felon for a Certificate of Restoration of Voting Rights (eligible if they have received a pardon or after maximum sentence has expired). Felony convictions after June 30, 1996, may seek restoration of voting rights after the maximum sentence imposed for conviction has expired, or after a pardon, or by petitioning the circuit court of the county of residence or county of conviction. Must obtain a “removal of political disabilities” from the Governor. Eligible to apply for the removal of political disabilities five years after completion of entire sentence and if all court costs and restitution have been satisfied.

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Table 15.1 Restoration of Voting Rights (Eighteen States, by Region)—continued Region/State

Restoration Process

The West Arizona

Nebraska Nevada

Washington

Two or more felonies: Must apply to sentencing court to obtain restoration of rights. If felony convictions resulted in a prison sentence, must wait two years after unconditional release from incarceration or completion of parole before eligible to apply. If felony convictions resulted in a sentence of probation, may apply for restoration of voting rights immediately on discharge from probation. First-time felons: Voting rights are automatically restored on absolute discharge from incarceration or completion of parole or probation. Completion of sentence, probation, or parole. Must obtain a warrant of discharge from Nebraska Board of Pardons. Must obtain restoration of civil rights from the State Board of Pardons Commissioners before being eligible to vote. A pardon only restores the right to vote if it expressly states that it restores civil rights. Completed probation: six months after expiration of term able to apply to State Board of Parole Commissioners, who then petitions the district court for restoration. Completed parole or served their full sentence: May immediately petition State Board of Pardons Commissioners, who then petitions the district court for restoration. Since July 2, 1984: After all of the requirements of sentence are completed, the Department of Corrections notifies the sentencing court. The sentencing court then issues and provides a certificate of discharge, which will have the effect of restoring the right to vote. Before July 1, 1984: Convicted for a state crime committed on or before July 1, 1984, must have been released on parole, may be able to obtain an order of discharge from the Indeterminate Sentence Review Board. Issuance of a certificate of discharge issued after all requirements of sentence is complete. Department of Corrections notifies sentencing court, sentencing court issues certificate. If convicted before or after July 1, 1984, may apply to the Clemency and Pardons Board for a pardon to have civil rights restored.

The Midwest Minnesota

Missouri South Dakota

Wyoming

If convicted of treason or of a felony, right to vote is restored by order of the sentencing court, following stay of sentence or stay of execution of sentence, or on final expiration of sentence. Offense related to the right to vote, permanent disenfranchisement Must obtain a certificate from the Secretary of Corrections stating that rights of a full citizen have been restored. The secretary should file a copy of the certificate with the sentencing court. The governor restores rights through a pardon. The governor also may issue certificates of restoration of rights on a person’s completion of probation or expiration of the term of the sentence.

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Disenfranchisement Laws in Eighteen States

Arizona Arkansas Minnesota Nebraska Nevada North Carolina South Dakota Florida Kentucky Mississippi Virginia Alabama Delaware Maryland Missouri Tennessee Washington Wyoming

X X X X X X

X X X X X X X

X X X X X X X X X X X X X

Permanent

Pardon

Waiting Period

X X X X X X X X X X X X X X X X X X

C.O.E.

X X X X X X X X X X X X X X X X X X

Probation

Disenfranchisement Laws*

Parole

State

Prison

Table 15.2

Keesha M. Middlemass

X

X

X X X

X

X X X X X X X X X X X X X X X

Population Characteristics**

Supervised Population***

White

Black

Latino

Prison Parole

75.5 80 89.4 89.6 75.2 72.1 88.7 78 90.1 61.4 72.3 71.1 74.6 64 84.9 80.2 81.8 92.1

3.1 15.7 3.5 4 6.8 21.6 0.6 14.6 7.3 36.3 19.6 26 19.2 27.9 11.2 16.4 3.2 0.8

25.3 3.2 2.9 5.5 19.7 4.7 1.4 16.8 1.5 1.4 4.7 1.7 4.8 4.3 2.1 2.2 7.5 6.4

33,103 13,699 8,675 4,024 10,606 34,298 3,138 84,210 17,470 23,669 35,172 30,628 6,808 23,434 30,515 25,835 16,229 2,018

Felony Probation

9,291 15,461 3,614 736 4,287 216

55,259 28,532 25,768 5,385 6,987 37,136

4,694 9,609 1,816 5,158 9,098 508 14,223 17,123 7,983 116 586

127,794 29,311 21,967 37,463 30,387 10,818 20,482 45,305 32,288 120,014 3,171

C.O.E.: Certificate of Eligibility

Table 15.3

Racial Composition of Incarcerated Population

State

Year

New Commitments White More Than Twelve Admissions Months per 100,000

Alabama Arizona Arkansas Delaware Florida Kentucky Maryland Minnesota Mississippi Nevada North Carolina South Dakota Tennessee Virginia Washington Wyoming

2001

7864

3422

4408

0

2001

5365

3418

1908

68

2001 2001 2001 2001 2001 2001 2001 2001 2001 2001 2001

24873 6348 10920 2983 5630 2361 20802 798 7424 10775 6609

11618 4633 2360 1758 2047 1299 7318 588 3358 3984 4815

12761 1698 8391 963 3558 586 12442 35 3907 6608 1347

2349 68

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Black Admissions

Hispanic Incarceration Admissions Rates

179 34 399 598 2 142 134 741

584 492 447 504 437 371 422 132 715 474 335 370 411 431 249 340

Table 15.4 State

Citizens, Registered, Urban Population and Multiracial Categories with Incarceration Rates % Population % Registered % Urban % White % Black % AI (Citizens) or AN 98.6 88.8 97.8 95.9 86.7 97.4 93.5 97.2 98.6 89.3 94.8 99.1 97.4 94.9 94.5 99.3

73.6 53.3 59.4 67.9 60.5 69.7 65.6 76.7 72.2 52.3 66.1 70.9 62.1 64.1 66.1 68.6

69.9 88.2 49.4 80 92.8 48.8 92.7 70.4 36.0 87.5 67.5 34.6 67.9 78.1 83.1 30.0

73.42 79.04 82.26 77.10 80.75 90.99 66.06 91.42 64.79 77.66 74.40 91.31 82.14 74.18 83.90 93.14

23.96 2.87 13.95 17.57 12.65 6.79 26.40 2.96 33.11 6.25 20.02 0.56 14.83 18.43 3.00 0.72

0.49 4.13 0.63 0.35 0.32 0.21 0.29 0.95 0.37 1.23 1.14 6.24 0.27 0.30 1.42 1.93

0.71 1.89 0.76 2.09 1.66 0.74 4.08 2.43 0.66 4.80 1.36 0.57 0.99 3.74 5.61 0.60

% NH or OPI 0.03 0.12 0.05 0.04 0.05 0.03 0.04 0.04 0.02 0.40 0.05 0.03 0.04 0.06 0.36 0.06

Incarceration Rates Per 100,000 584 492 447 504 437 371 422 132 715 474 335 370 411 431 249 340

Unfit To Vote

Alabama Arizona Arkansas Delaware Florida Kentucky Maryland Minnesota Mississippi Nevada North Carolina South Dakota Tennessee Virginia Washington Wyoming

Asian

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C H A P T E R

1 6

FELON VOTING RIGHTS AND THE DISENFRANCHISEMENT OF AFRICAN AMERICANS Christopher Uggen, Jeff Manza, and Angela Behrans

The centrality of race for American political development is by now well understood. Social scientists have traced the interaction between race and the construction of federal political institutions, the class/race (or gender/race) nexus in public policymaking, and the effect of racial attitudes and racism on the political beliefs and policy preferences of citizens and policymakers alike. In recent years, research and theories about the American “racial state” have delved into many of the crevices of U.S. history that had previously ignored, veiled, or underplayed racial factors.1 Of particular importance is the development of new investigations of social and political practices with partially—or completely—hidden racial dynamics. Felon disenfranchisement laws, which restrict the voting rights of those convicted of criminal offenses, provide a good example. These laws are facially neutral with regard to race, applying equally to all convicted of felonies. Nevertheless, given both the historical efforts to deny the right to vote to African Americans and the dramatic overrepresentation of persons of color within the criminal justice system, the racial dimension of felon disenfranchisement seems obvious to many observers. For example, when asked why some states might mandate felon disenfranchisement, a young African American probationer we interviewed in Minnesota responded succinctly: “To be honest, I think they just want less blacks to vote.”2 Some scholars have thus begun to examine the role of racial factors in the origins and contemporary effects of felon disenfranchisement.3 In contrast, proponents of felon disenfranchisement maintain that these laws are race neutral, applying equally to all criminal offenders, and that states have the right to regulate access to the ballot box. Federal courts have almost invariably agreed,

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rejecting claims of disparate racial impact either brought under the Voting Rights Act or on other constitutional grounds. The emergence of a national civil rights campaign to restore the right to vote to felons, as well as a growing debate over the question, indicate that a thorough examination of the racial history and development of U.S. felon disenfranchisement laws is in order. We offer here a brief summary of our ongoing research and that of other scholars on these questions. Because of the racial origins and disparate effect of felon ballot restrictions, we argue that the claims of race neutrality cannot withstand close scrutiny. RACIAL ORIGINS OF FELON DISENFRANCHISEMENT LAW IN THE UNITED STATES Felon disenfranchisement laws bar those convicted of felony-level crimes and, in some cases, former felons from voting. The wide variation in state felon disenfranchisement laws reflects the absence of a national standard governing the voting rights of criminal offenders. States generally differentiate between four categories of convicted offenders: 1) felons who are currently incarcerated; 2) previously incarcerated felons who are under parole supervision; 3) convicted felons who were never incarcerated but who were sentenced to probation; and 4) former felons who have completed their sentence and no longer have any official connection with the criminal justice system. At present, two states—Maine and Vermont—allow all felons, including those currently in prison, to vote. At the other end of the spectrum, fourteen states bar some or all former felons from voting for life or until their rights have been formally restored through clemency. Compared with other democracies, such laws are unique: the United States is virtually the only democratic country in the world to disenfranchise large numbers of former felons and current felons under parole or probation supervision. Combined with the very high U.S. rates of incarceration and conviction, the practice of felon disenfranchisement in this country has a much broader overall and race-specific effect than it might anywhere else in the world. American history is replete with examples of states and groups attempting to deny nonwhites full citizenship—a status that encompasses the right to vote. Felon disenfranchisement laws can be viewed as part of a larger movement to maintain control over access to the ballot following the gradual establishment of universal white male suffrage after the 1830s. Only four states had disenfranchisement laws prior to 1840, but between 1840 and the beginning of the Civil War in 1861, some fourteen states adopted their first disenfranchisement laws. To our knowledge, historians and other social scientists have not yet investigated this era, and thus we have little systematic data concerning the factors that might have driven the first wave of disenfranchisement laws. Because at that time very few states allowed African Americans to vote, however, race was not a primary motivating factor behind these early laws. The second wave of adoption is more clearly and decisively linked to racial factors. In the ten years following the Civil War, eleven states passed a felon disenfranchisement law for the first time or dramatically broadened an existing but narrowly tailored law. These measures were undertaken as the Fourteenth and Fifteenth Amendments were changing definitions of citizenship and expanding (or threatening

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to expand) the right to vote. In 1868, the Fourteenth Amendment extended the definition of American citizenship to include all persons born in the United States, thus rejecting the opinion of the Supreme Court in its Dred Scott decision a decade earlier.4 The amendment also included the equal protection clause and reduced state representation in Congress for states denying any male the right to vote. In 1870, the Fifteenth Amendment explicitly eliminated states’ ability to deny the right to vote based on race. Although it has not generally been examined as part of the history of the disenfranchisement of African Americans in this era,5 both anecdotal and systematic historical evidence from the late nineteenth and early twentieth centuries indicates that some political actors made a conscious attempt to dilute African American voting strength through felon disenfranchisement. In 1901, for example, the president of Alabama’s constitutional convention used his opening address to advocate restricting access to the ballot box as a tool to maintain white supremacy: [I]n 1861, as now, the Negro was the prominent factor in the issue. . . . And what is it that we want to do? Why it is within the limits imposed by the Federal Constitution, to establish white supremacy in this State. . . . The justification for whatever manipulation of the ballot that has occurred in this State has been the menace of Negro domination.6

Subsequently, at the same convention, a provision passed to expand the state’s felon disenfranchisement law, with its chief proponent estimating that “the crime of wifebeating alone would disqualify sixty percent of the Negroes.”7 The extension of disenfranchisement to minor offenses for which African Americans were primarily charged, such as vague acts of “moral turpitude,” was common in a number of Southern states.8 In an 1896 case later cited approvingly by the U.S. Supreme Court, the Mississippi Supreme Court upheld a disenfranchising measure that singled out such crimes, declaring: Restrained by the federal constitution from discriminating against the Negro race, the convention [of 1890] discriminated against its characteristics and the offenses to which its weaker members were prone. . . . Burglary, theft, arson, and obtaining money under false pretenses were declared to be disqualifications, while robbery, murder, and other crimes in which violence was the principal ingredient, were not.9

Although such discourse provides circumstantial evidence of the role race played in motivating disenfranchisement laws, we find striking confirmation when we examine the larger pattern with quantitative evidence. We developed a statistical analysis of the factors that led states to adopt or to extend felon disenfranchisement laws from 1850 to 2002.10 We found that states having larger proportions of nonwhites in their prison populations were more likely to pass restrictive laws, even when the effects of time, region, economic competition between whites and blacks, partisan control of government, and state incarceration rates were statistically controlled. In other words, the higher the proportion of nonwhite inmates in a given state’s prison population, the more likely that state was to adopt restrictive felon disenfranchisement measures.

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Historically, felon disenfranchisement has been an effective means of reducing the voting power of African Americans because of racially disparate incarceration rates.11 The post–Civil War passage of restrictive laws closely paralleled changes in the racial composition of state criminal justice systems, particularly in the South, where the percentage of nonwhite prison inmates nearly doubled in many states between 1850 and 1870. In Alabama, for example, 2 percent of the state’s prison population was nonwhite in 1850, compared to 74 percent in 1870.12 Some suggest that the disproportionate criminal punishment of nonwhites constitutes, in part, a reaction to racial threat, enabling a majority group to reduce a perceived threat to its power or continued dominance.13 The extension of such racial threat theories to felon disenfranchisement is straightforward. The linkage of race and crime in relation to the right to vote has a long and unsavory history. Even in the early nineteenth century, campaigns to disenfranchise African Americans invoked racial disparities in incarceration as evidence that African Americans were unworthy of assuming the full rights and duties of citizenship. Consider the remarks of Colonel Samuel Young in the 1821 New York State legislative debate over a measure to disenfranchise African Americans: The minds of blacks are not competent to vote. They are too degraded to estimate the value, or exercise with fidelity and discretion this important right. . . . Look to your jails and penitentiaries. By whom are they filled? By the very race it is now proposed to clothe with the power of deciding upon your political rights.14

In this historical context, our findings concerning the role of race in driving the adoption or extension of disenfranchising measures aimed at felons or former felons fits into a much larger historical pattern: White political elites employed racial stereotypes and fears of crime to eliminate core citizenship rights for large numbers of African Americans. CONTEMPORARY EFFECT OF FELON DISENFRANCHISEMENT The incarceration rate of African Americans today is about seven times that of whites, and because many Southern states (with large African American populations) maintain the most extensive set of voting restrictions (including, in many cases, lifetime bans for ex-offenders), African Americans are significantly overrepresented in the disenfranchised population.15 We estimate that because of a felony conviction, more than 4.6 million people are disenfranchised in the United States, representing approximately 2.3 percent of the total voting-age population.16 However, nearly 7.5 percent of the African American voting-age population is disenfranchised, constituting almost 2 million citizens in all. Because most convicted felons are men, an even more startling one in seven African American men are now ineligible to vote because of a felony conviction.17 The stark character of these statistics is magnified when we examine the patterns of regional variation. Because voting rights are generally regulated at the state level, as are criminal justice policies, a purely national focus understates the full effect of the disenfranchisement. In a number of states—Florida, Iowa, Kentucky, and Virginia among them—the proportion of the African American

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electorate that is disenfranchised encompasses more than 15 percent of the entire statewide African American population and over a quarter of all African American men. Even if felon disenfranchisement were to take voting rights equally from all racial groups, some critics charge that racial bias remains in the process of restoring civil rights in states that require ex-offenders to undergo a formal clemency process.18 Our own detailed investigation of the voting rights restoration process in Florida found that white applicants were more likely to have their clemency applications approved than black applicants. These racial differences exist even after differences in white and black applicants are taken into account.19 The combination of strict felon disenfranchisement laws and their disproportionate effect on the African American electorate has some tangible effects on political elections. In recent years, African American voters have expressed strong preferences for Democratic political candidates, with more than 90 percent supporting the Democratic presidential candidate in the 1996 and 2000 elections.20 It is possible—even likely—that but for felon disenfranchisement, some closely contested elections won by Republicans would have been won by Democrats. We tested this proposition, again using quantitative data (in this case from national election surveys), to estimate how many of these lost felon voters would have participated in recent elections, and how they might have voted. Our results indicate that as many as seven recent U. S. Senate elections, as well as the 2000 presidential election, likely hinged on the disenfranchisement of some or all felons and former felons.21 Moreover, if only former felons who had completed their entire sentences had been allowed to vote in Florida, the evidence that Al Gore would have carried the election is undeniable.22 The effect of disenfranchisement has been greatest in narrow Republican victories in states with restrictive felon disenfranchisement rules that apply not only to former felons but also to probationers, parolees, and former felons as well. These tend to be states with large African American electorates. If we look, for example, at the seven states in which U.S. Senate elections have gone to Republicans in part because of felon disenfranchisement (i.e., Florida, Georgia, Texas, Virginia, Wyoming, and twice in Kentucky), all except Wyoming are southern states with relatively large black or minority populations. There is a further geographical effect that we could not investigate: Because of a lack of suitable data, we were unable to systematically examine elections below the state level. Given the concentration of convicted felons and former felons in urban areas, however, it is quite likely that the electoral effect is even more significant at local and municipal levels. CONTEMPORARY LEGAL AND POLICY DEBATES Despite the clear disparate effect of felon disenfranchisement and its capacity to influence political outcomes, past legal challenges have been almost completely unsuccessful. Unless a clear and expressed racial motivation to disenfranchise can be demonstrated, the courts have held that state felon disenfranchisement laws are permissible.23 Nevertheless, the political environment is proving somewhat more hospitable to challenges to disenfranchisement, particularly to laws limiting the rights of former

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felons. Contemporary debates on disenfranchisement often pit arguments pointing to the racial effect and history of disenfranchisement against arguments that the laws apply equally to all felons, and that disenfranchisement is a legitimate choice that states may exercise. In 2001, following heated exchanges concerning a bill to further restrict South Carolina’s disenfranchisement law, for example, one of the bill’s sponsors rejected a racial motivation, claiming that, “If it’s blacks losing the right to vote, then they have to quit committing crimes. We are not punishing the criminal. We are punishing conduct.”24 In early 2002, two U.S. senators who opposed a federal bill to allow all former felons to vote in federal elections noted that, “states have a significant interest in reserving the vote for those who have abided by the social contract,” and that “each State has different standards based on their moral evaluation, their legal evaluation, their public interest in what they think is important in their States.”25 States’ rights arguments have long been invoked to preserve racial inequality, and this debate is no exception. Despite resistance to liberalizing state disenfranchisement laws, efforts to change the laws through legislative reform have seen some success in recent years, in part as a result of mobilization within and outside of state legislatures. In 2001, the Connecticut state legislature’s Black and Puerto Rican Caucus mobilized around a bill to reenfranchise probationers. With the strong support and lobbying efforts of fifty organizations in a newly formed Voting Rights Restoration Coalition, the bill passed.26 Similarly, efforts by the Maryland Legislative Black Caucus were instrumental in reenfranchising recidivists—previously disenfranchised indefinitely— three years after they completed their sentences.27 Civil rights groups are contesting the disenfranchisement laws in a number of other states as well.28 This variety of political mobilization is likely to be particularly important in the effort to restore the vote to former felons. Although more states disenfranchise prisoners than ever before, since the 1950s we can see a marked trend toward liberalizing ballot restrictions for former felons who have completed their sentences.29 Moreover, this trend appears to be consistent with public sentiment on the issue, as most Americans favor reenfranchisement. A recent national poll finds that 80 percent favor restoring voting rights to former felons and 60 percent favor restoration of voting rights to current probationers and parolees.30 CONCLUSION In the most recent presidential election, over 1.8 million African Americans, and a total of more than 4.6 million Americans overall, were barred from voting by the unusually restrictive felon disenfranchisement laws in the United States. In many states, the origins of such laws can be traced to the broader dynamics of racial discrimination and to explicit efforts to diminish African American voting strength. Analysis of the contemporary political consequences of felon disenfranchisement laws indicates that they provide a small but clear advantage to Republican candidates, particularly in states that disenfranchise former felons in addition to those currently under supervision. Although other barriers to political participation have fallen, some or all felons remain disenfranchised in forty-eight states. In recent years, repeal efforts, often led Middlemass

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by African American state legislators, have been successful in several states. Moreover, the overall trend in the last sixty years has been one of reenfranchisement rather than disenfranchisement. Since 1947, a total of thirty states have liberalized their laws to some degree, with many eliminating restrictions on ex-felons in the 1960s and 1970s. Still, it remains a striking historical fact that no state has ever completely abolished a felon disenfranchisement law. Given the evidence we have reviewed in this chapter, the racial origins and contemporary racial effect of felon disenfranchisement must be taken into account as the continuing viability of these laws is debated at state and national levels. NOTES 1. For some examples of this burgeoning literature, see Michael Goldfield, The Color of Politics (New York: New Press, 1997); Michael K. Brown, Race, Money, and the American Welfare State (Ithaca, NY: Cornell University Press, 1999); Charles Mills, The Racial Contract (Ithaca, NY: Cornell University Press, 1997); Jill Quadagno, The Color of Welfare (New York: Oxford University Press, 1994); Jeff Manza, “Race and the Underdevelopment of the American Welfare State,” Theory and Society 32 (2000): 819–32. 2. For details on these interviews, see Jeff Manza and Christopher Uggen, Locking Up the Vote: Felon Disenfranchisement and American Democracy (New York: Oxford University Press, 2005). 3. For some earlier examples of the scholarship linking felon disenfranchisement laws to the broader denial of the franchise to African Americans, see Andrew Shapiro, “Challenging Criminal Disenfranchisement under the Voting Rights Act: A New Strategy,” Yale Law Journal 103 (1993): 537–66; Virginia Hench “The Death of Voting Rights: The Legal Disenfranchisement of Minority Voters,” Case Western Law Review 48 (1998): 727–98; Alice Harvey, “Ex-Felon Disenfranchisement and Its Influence on the Black Vote: The Need for a Second Look.” University of Pennsylvania Law Review 142 (1994): 1145–2289; and Angela Behrens, Christopher Uggen, and Jeff Manza, “Ballot Manipulation and the ‘Menace of Negro Domination’: Racial Threat and Felon Disenfranchisement in the United States, 1850–2002,” American Journal of Sociology 109 (2003). 4. Scott v. Sandford, 60 U.S. 393 (1857) (holding that African Americans were not citizens within the meaning of the U.S. Constitution). 5. See Alexander Keyssar, The Right to Vote (New York: Basic Books, 2000), esp. 162–163; see 302–310, for a rare exception. 6. State of Alabama [1901] 2002. “Official Proceedings of the Constitutional Convention of the State of Alabama May 21, 1901, to September 3, 1901,” available at http://www.legislature.state.al.us/misc/history/constitutions/1901/proceedings/ 1901_proceedings_vol1/day2.html. 7. Malcolm C. McMillan, Constitutional Development in Alabama, 1798–1901 (Chapel Hill: University of North Carolina Press, 1955). 8. For example, see Keyssar, Right to Vote, 306. 9. Ratliff v. Beale, 74 Miss. 247, 266–67 (1896), cited in Williams v. Mississippi, 170 U.S. 213, 222 (1898). 10. Behrens et al., “Ballot Manipulation and the ‘Menace of Negro Domination.’” 11. U.S. Department of Commerce, Bureau of the United States, Census of the United States (Washington, DC: GPO, 1882); U.S. Department of Justice, Bureau of Justice Statistics, Prison and Jail Inmates at Midyear 2001 (Washington, DC: GPO, 2002). Middlemass

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12. U.S. Department of Commerce, Bureau of the United States, Census of the United States (Washington, DC: GPO, 1853–1872). 13. Karen Heimer, Thomas Stucky, and Joseph B. Lang, “Economic Competition, Racial Threat, and Rates of Imprisonment.” Paper presented at the Annual Meetings of the American Society of Criminology, Toronto, 1999; Martha A. Myers, Race, Labor, and Punishment in the New South (Columbus: Ohio State University Press, 1998). 14. Quoted in Christopher Malone, “‘The Mind of Blacks Are Not Competent to Vote’: Racial Voting Restrictions in New York,” unpublished manuscript, Pace University, 2003, p. 19. 15. U.S. Department of Justice, Bureau of Justice Statistics, Prison and Jail Inmates at Midyear 2001 (Washington, DC: GPO, 2002). 16. Christopher Uggen and Jeff Manza, “Democratic Contraction? The Political Consequences of Felon Disenfranchisement in the United States,” American Sociological Review 67 (2002): 777–803. 17. Ibid.; see also Jamie Fellner and Marc Mauer, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States (Washington, DC: Human Rights Watch and the Sentencing Project, 1998). 18. Gary Kane and Scott Hiaasen, “Clemency Process Unfair to Blacks?” Palm Beach Post, December 23, 2001. 19. See Manza and Uggen, Locking Up the Vote, chap. 8. 20. Michael Dawson, Behind the Mule: Race and Class in American Politics (Princeton, NJ: Princeton University Press, 1994); Robert Huckfeldt and Carol W. Kohfeld, Race and the Decline of Class in American Politics (Urbana: University of Illinois Press, 1989); U.S. Census Bureau, Statistical Abstract of the United States: 2002 (Washington, DC: GPO, 2003). 21. Uggen and Manza, “Democratic Contraction?” 22. Ibid., 793. 23. The one exception to this generalization is Hunter v. Underwood, 471 U.S. 222 (1985), in which the U.S. Supreme Court rejected provisions of the Alabama felon disenfranchisement law because of the clear racial bias in the law’s origins. The controlling case, Richardson v. Ramirez (418 U.S. 24 [1974]), upheld the constitutionality of felon disenfranchisement laws as consistent with the intent of Section Two of the Fourteenth Amendment, which the court interpreted as permitting disenfranchisement of those convicted of “rebellion or other crimes.” 24. Warren Wise, “House Doesn’t Kill Bill to Delay Felons Voting,” The Post and Courier, February 16, 2001, p. A3. 25. U.S. Congress, Congressional Record. 107th Cong., 2d sess. S.565, pp. S797–S809 (Washington, DC: GPO, 2002), S802–S803. 26. Miles S. Rappoport, “Restoring the Vote,” The American Prospect 12 (2001): 14. 27. Lori Montgomery and Matthew Mosk, “Md Bill Advances to Let Ex-Criminals Vote,” The Washington Post, March 30, 2002, p. B2. For an overview of the emerging campaign to restore felon and former felon voting rights, see Michael Coyle, State Based Advocacy on Felony Disenfranchisement (Washington, DC: The Sentencing Project, 2003). 28. Steven Kalogeras, Legislative Changes on Felon Disenfranchisement, 1996–2003 (Washington, DC: The Sentencing Project, 2003). 29. Behrens et al., “Ballot Manipulation.’”

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30. See Jeff Manza, Clem Brooks, and Christopher Uggen, “Civil Death or Civil Rights? Public Attitudes towards Felon Disfranchisement in the United States,” in Public Opinion Quarterly 68 (2004): 276–87; Brian Pinaire and Milton Heumann, “Barred from the Vote: Public Attitudes Toward the Disenfranchisement of Felons,” Fordham Urban Law Journal 30 (2003): 1519–50.

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C H A P T E R

1 7

JIM CROW IS ALIVE AND WELL IN THE TWENTYFIRST CENTURY: FELONY DISENFRANCHISEMENT AND THE CONTINUING STRUGGLE TO SILENCE THE AFRICAN AMERICAN VOICE Ryan Scott King

The United States has experienced a well-documented expansion in its use of correctional supervision, which has been fed by the adoption of punitive sentencing legislation at the state and federal levels. This growth has come largely at the expense of the African American community, which has been economically and politically marginalized as a result. Felony disenfranchisement—the loss of voting rights as the result of a felony conviction—exacerbates these inequalities by both silencing the political voice of the individual and diluting the electoral effect of the broader community. This chapter examines the historical roots and modern-day consequences of American disenfranchisement, analyzes its development into a tool of political segregation, and calls for the abolition of this vestige of Jim Crow exclusionism. During the preceding three decades, in which the U.S. prison population increased fivefold, advocates concerned with this substantial growth rang warning bells that the overreliance on incarceration to address criminal behavior would lead to the creation of a “prison nation.” In the contemporary United States, in which more than two million people are incarcerated, seven million people are under correctional supervision, 13 million adults have been convicted of a felony, and 47 million Americans have some type of criminal record, those warnings that had been dismissed as an overreaction by some have attained a newfound relevance.1

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The status of “felon” has now taken on broadening significance beyond its origin as an administrative tool of classification. The expansion of its meaning began with its use as a label of stigmatization to signify an “otherness” from society, which resulted in the creation of obstacles, both formal and informal, in the lives of people with a felony conviction.2 Being identified as a felon meant that one was “immoral,” “irresponsible,” and vulnerable to ostracization in some tangible fashion. In the wake of growing resistance to the civil rights movement, and augmented by racially disparate law enforcement and corrections policies, the term “felon” also became largely synonymous with the African American community. These informal synecdoche took on a functional effect, as the status of “having a felony conviction” was used as a means of filtering access to housing, employment, and educational opportunities. Although these practices may be of questionable legal standing, they exist, and persons with a current or prior felony conviction can expect to be stigmatized and barred from accessing opportunities otherwise available to the general population. In addition to such informal barriers, in the past two decades state and local governments began to impose formal legal sanctions, beyond institutional supervision, that accompany a felony conviction. Whereas informal sanctions were enforced by the will of the community, these legal obstacles had “teeth” because of the power of the state. These collateral consequences were legally prescribed, separate from the sentencing power of the judge, and removed from his or her discretion. Thus, although a judge has some degree of discretion in levying a sentence, often by type or length of supervision, these additional sanctions, coined “invisible punishment” by Jeremy Travis, are forged in statutes and constitutions.3 These sanctions can include restrictions on certain types of employment, educational benefits, welfare benefits, and public housing. Although all of these collateral consequences are critical and pose their own specific policy issues, this chapter focuses on the loss of voting rights as a result of a felony conviction. The linking of voting eligibility to a person’s conviction status is not a new development, nor is it a policy limited to the United States. However, the scope of the prohibition coupled with the substantial numbers of individuals affected, who are particularly concentrated in the African American community, renders American disenfranchisement law unique on a global scale. This chapter addresses the historical and legal background of the policy, discusses the effect of the policy on the African American community, considers recent developments in the legislative and legal arena, and suggests a new area for consideration by advocates working for reform. A BRIEF HISTORY OF DISENFRANCHISEMENT The practice of prohibiting persons with a criminal background from voting traces its origins to ancient Greece and Rome. The United States modeled its practice on the European concept of “civil death,” which stripped a person of his or her civil rights based on criminal activity.4 After the founding of this country, a number of states adopted felony disenfranchisement provisions in their constitution or statutory code. As a practical matter, voting eligibility was already very narrow, being limited to white, propertied males. Thus, the effect of felony disenfranchisement was narrow

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in scope and drew limited attention until the extension of the franchise in the wake of Reconstruction. After the passage of the Reconstruction Amendments, it became increasingly clear that the Supreme Court was going to subject policies that appeared to be exclusionary on the basis of race to heightened scrutiny. With the passage of time, efforts to restrict the franchise through means such as poll taxes and literacy tests were ultimately struck down as violations of the Equal Protection Clause of the Fourteenth Amendment or by the Voting Rights Act of 1965. However, some historians argue that politicians in the South saw felony disenfranchisement as a means of limiting the franchise to African Americans while still withstanding constitutional scrutiny. Many argued that language in Section 2 of the Fourteenth Amendment granted an exception permitting state disenfranchisement policies for criminal convictions.5 Section 2 of the Fourteenth Amendment says that if a state denies the right to vote to any male inhabitant who is a citizen twenty-one years of age, their representation in Congress will be reduced accordingly. However, there is an explicit exception to this restriction for “participation in rebellion, or other crime.”6 Astute legal observers have debated for more than a century about the true meaning of that exclusion; however, the Supreme Court ruling in Richardson v. Ramirez concludes that this phrase stands as an exception to the preceding clause regarding expanded voting eligibility. When read in such a way, the practice of felony disenfranchisement appears to be immunized from the protections and prohibitions of the Fourteenth Amendment. White legislators in the South concerned about the potential power of a voting bloc of recently emancipated slaves embraced felony disenfranchisement as one approach to suppressing the emergence of this political voice. To ensure state control over extending the franchise to African Americans, a number of jurisdictions narrowly tailored their disenfranchisement laws to apply to offenses that were perceived to be committed primarily by African American offenders. This would allow a state to plead that the policy was facially race neutral, insulating it from the potential constitutional challenges that were newly emerging, despite the fact that in practice the results were racially disproportionate. During the 1890 Mississippi constitutional convention, delegates crafted a disenfranchisement law that was intentionally targeted to apply disproportionately to African American offenders. “Furtive offenses,” such as burglary or theft, were considered to be the criminal domain of blacks, and as such, would result in the loss of voting rights.7 Meanwhile, “robust crimes,” such as murder, that were considered to be more commonly committed by whites, would not result in a loss of voting rights.8 Similarly, in Alabama’s convention in 1901, John B. Knox, the president of the proceedings, described the intent of the proceedings as being to “establish white supremacy in this State” to any degree permissible under the U.S. Constitution.9 These overt efforts to use disenfranchisement as a tool to maintain white political dominance in the South were seen by one historian as “insurance if courts struck down more blatantly unconstitutional clauses.”10 Whether it was seen through such a strategic lens by nineteenth century lawmakers in the South remains debatable, but that fact notwithstanding, history has confirmed the approach. In the bellwether case of Richardson v. Ramirez (1974), the Supreme Court held that the prohibition

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against voting in the California Constitution and multiple sections of the state’s Elections Code for persons convicted of a felony did not violate the Equal Protection Clause of the Fourteenth Amendment. The court ruled that the explicit exception, “or other crime,” described above from Section 2, demonstrates that the drafters of the Amendment could not have intended to prohibit, in Section 1, a state basing voting eligibility on one’s criminal status. By the mid-1980s, the U.S. prison population had been growing steadily for over a decade, and in the wake of the launch of the war on drugs, African Americans were shouldering an ever-increasing proportion of the correctional state. Meanwhile, as these racially disproportionate trends raised the profile of disenfranchisement policy, a lawsuit against Alabama’s disenfranchisement practice was addressing the prohibition’s roots in southern black electoral exclusionism. In Hunter v. Underwood (1985), the plaintiffs challenged the state’s disenfranchisement laws, arguing that the types of offenses in Alabama that triggered disenfranchisement were “intentionally adopted to disenfranchise blacks on account of their race and that their inclusion . . . has had that intended effect.”11 In this case, the plaintiffs argued that the particular prohibition in Alabama was borne of racially biased intent; thus, even if the general practice was constitutional as per the Richardson ruling, the law in Alabama should be voided under the Fourteenth Amendment because of its origins in exclusionary politics. The court concluded that the record indicated that the crimes in the statute that would result in disenfranchisement were intentionally chosen for their high likelihood of concentration in the African American community.12 The court ruled that “its original enactment was motivated by a desire to discriminate against blacks on account of race and the section continues to this day to have that effect.”13 PostHunter, a state could prohibit a person from voting because he or she had a felony conviction, but there was an exception: If a challenging party could demonstrate that the intent of the policy, at the time of adoption, was to purposely limit the franchise in the African American community, then the practice would be unconstitutional. Although the decision opens up an opportunity for parties seeking to challenge disenfranchisement policy, this opening is very limited. Meeting the burden of demonstrating racial intent is difficult, and courts are generally loathe to make such a finding. The process involves analyzing legislative testimony and, in some cases, interpreting the motivations of legislators based on language that could be taken out of context. The case in Alabama, with such explicit testimony, is an exception; courts generally have been reluctant to enter the fray of determining legislative intent as it pertains to racial bias. However, despite difficulties in proving legislative intent, measures of the effect of felony disenfranchisement on the African American community in practice have been abundantly clear. THE RACIAL EFFECT OF FELONY DISENFRANCHISEMENT Forty-eight states and Washington, DC, prohibit persons in prison from voting, and thirty-six of these states also prevent parolees or probationers from voting.14 Nationally, more than five million Americans are ineligible to vote because of a felony conviction, with more than two million of these persons residing in one of the thirteen states in which the right to vote is restricted even after the completion of

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sentence.15 The effect of disenfranchisement is particularly acute in those eleven states in which a felony conviction can result in a lifetime loss of voting rights.16 In Florida, for example, nearly one million persons who have completed their sentence are disenfranchised.17 Thus, a person who has completely fulfilled all obligations to the state and has been judged eligible for release from supervision may still be permanently disenfranchised. This lifetime punishment adheres to no proportionality, as a first-time offender and a repeat offender may be treated the same way in the eyes of the law. It is impossible to discuss criminal justice policy in the United States without addressing its effect on the African American community. African Americans disproportionately experience every stage of the criminal justice system, from arrest through conviction, sentencing, and supervision. More than two million African Americans are legally ineligible to vote because of a felony conviction, translating into one in 12 persons of voting age.18 For African American males, the effect is even more pronounced, with one in eight persons of voting age disenfranchised.19 In some states, one in four black males are prohibited from voting because of a felony conviction.20 The geographic concentration of persons under correctional supervision exacerbates inequalities and amplifies the effect of disenfranchisement on both the individual and entire communities of color. EFFECT ON THE AFRICAN AMERICAN COMMUNITY The prevalence of disenfranchisement in the African American community has had wide-ranging and measurable consequences. These include obvious effects, such as reduced political engagement and diminished registration, as well as more subtle effects, such as vote dilution and the establishment of barriers to reentry for persons returning to the community from prison. Vote Dilution

Andrew Shapiro has argued that, as a result of the racially disparate effect of the criminal justice system, disenfranchisement policies deny the right to vote disproportionately to minority communities and that, through this process, they dilute the political voice of the people remaining in these communities.21 The vote denial argument states that by virtue of their race, African Americans are subjected to a higher likelihood of being disenfranchised; therefore, their role in electoral politics is comparatively less than that of other races. The vote dilution argument, in contrast, is particularly compelling insofar as it shifts the focus of disenfranchisement from the individual to the community: “[E]ven though the law does not deny the right to vote to any of them as individuals, the law disproportionately weakens the voting strength of their community.”22 African Americans are disenfranchised at a rate more than three times the national rate, and in fourteen states more than one in ten African Americans is prohibited from voting because of a felony conviction.23 However, the vote dilution argument focuses not on those disenfranchised but, instead, on those remaining in the community. It

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addresses those persons who by virtue of the location of their domicile are affected by high levels of disenfranchisement. For residents of communities that experience high-density incarceration, legal disenfranchisement is exacerbated by de facto disenfranchisement. This is the result of inadequate education and misinformation on voting eligibility, leaving many persons who reside in states in which they are able to vote assuming that they are disenfranchised because of a felony conviction. Although no estimates exist on the extent of de facto disenfranchisement, anecdotal evidence indicates that the number affected could dwarf those who are legally disenfranchised. The empirical data bear out Shapiro’s observations and indicate that African American communities are much more likely to be affected by disenfranchisement policies. There has been little analysis of the neighborhood-level effect of disenfranchisement, but a recent study by The Sentencing Project indicates that the effect of vote dilution may be substantial. In the city of Atlanta, Georgia, a neighborhood analysis of disenfranchisement rates revealed that black males in the city were eleven times more likely to be disenfranchised than nonblack males,24 and in eleven neighborhoods, more than one in ten black males were ineligible to vote because of a felony conviction.25 When examining voter registration figures for Atlanta, more than two-thirds of the gap between registration rates of black males and nonblack males was attributable to black males who were legally ineligible to vote because of a felony conviction.26 Disenfranchisement patterns reflect disparate felony conviction rates, thereby disproportionately affecting the African American community. Suppressed registration rates indicate that felony disenfranchisement policy is having a profound effect on the black community’s ability to express its political voice. A recent study analyzing the interaction between voter turnout rates and the degree of restrictiveness of state felony disenfranchisement laws found a strong correlation.27 African American voter turnout among nondisenfranchised persons was about equal with whites in states with the least restrictive disenfranchisement laws.28 However, African American participation dropped precipitously, relative to whites, in more restrictive states.29 Thus, a harsh disenfranchisement policy not only affects those persons who are ineligible to vote but also suppresses voter turnout for the entire African American community. This differential effect of felony disenfranchisement manifests itself in concrete policy outcomes. For example, if two communities are in competition for a finite amount of resources (money, business siting, representational power), and one neighborhood has a disenfranchisement rate of 1 percent and the other of 10 percent, there will be a gross inequity in the degree of influence of each neighborhood. Now, consider that the neighborhood with the high concentration of disenfranchisement is also 90 percent African American, whereas the competing neighborhood is less than 5 percent black. The results become clear, and those persons in the communities with high-density incarceration are left at a palpable disadvantage because of the rates of disenfranchisement of their neighbors. As such, their political voice is diluted, and they are left at a comparative political disadvantage. Because of the significant disparities in community-level rates of disenfranchisement by race, the effect of this policy on registration and participation rates in the African American community has been profound.

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PUBLIC SAFETY AND REENTRY In his 2004 State of the Union address, President George W. Bush observed that “America is the land of second chances, and when the gates of the prison open, the path ahead should lead to a better life.” The sentiment offered by the president sets a noble goal for corrections policy, but one that is incongruous with the practice of felony disenfranchisement. The time when a person is transitioning out of prison and into society is one of significant struggle that is rife with pitfalls in dealing with practical matters such as employment, housing, and fulfilling obligations to community supervision agencies. In addition, people with felony convictions face obstacles that present a symbolic exclusion from society and send mixed messages about society’s collective expectations. On the one hand, individuals are told when they leave prison that they must find work and shelter, report to their parole officer, and follow all of the relevant guidelines of release. In doing so, they are returned to a status of “member of society” (no longer “felon”), and they are free from the custody of correctional supervision and responsible for their own destiny. However, felony disenfranchisement sends the opposite message. The prohibition on voting tells an individual that his or her opinions are unwelcome in the national discourse on policy, rendering that person “an alien in [their] own country.”30 Voting is both a symbolically expressive activity and a functional act that demonstrates a commitment to American institutions and means of political expression. Rather than restricting a person with a felony conviction from voting, community development would be enhanced by encouraging political participation. There is no purer manifestation of the fact that someone has “bought in” to a society and its structure and norms than for that person to become engaged in the electoral process. Moreover, empirical evidence is emerging regarding the practical effect of voting on public safety. A study by sociologists Christopher Uggen and Jeff Manza found “consistent differences between voters and non-voters in rates of subsequent arrest, incarceration, and self-reported criminal behavior.”31 They found rearrest rates of persons who voted after release from supervision to be less than half the rate of persons who did not vote.32 These findings lend credence to a theory linking voting, social bonding, and future criminal behavior. RECENT LEGISLATIVE CHANGES During the last ten years, there have been a number of developments at the state level that have ushered in less restrictive policies regarding voting eligibility of persons with a felony conviction. Since 1996, eleven states have passed laws eliminating or scaling back provisions that disenfranchised certain categories of persons with a felony conviction. One of the states with the most substantial changes is New Mexico, which in 2001 repealed the state’s lifetime ban on voting for people with felony convictions. The result was the restoration of the vote for more than 63,000 persons. In addition, in July 2005, Iowa Governor Tom Vilsack issued an executive order restoring the right to vote to more than 80,000 people who had completed their

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sentences and were no longer under supervision. Vilsack has committed to continuing this process on a monthly basis, in effect providing an alternative to Iowa’s constitutional prohibition on voting for persons with a felony conviction. In Nebraska, the state repealed its lifetime ban on voting in 2005, replacing it with a two-year waiting period before automatically restoring the right to vote. Other states also have undertaken substantial legislative reform. Maryland repealed its lifetime voting prohibition for nonviolent, repeat offenders, and Texas eliminated a two-year waiting period after the completion of sentence before permitting the restoration of the vote. The common thread in these reforms is that they address persons who have completed their sentences. People who have completed their sentences engender the most sympathy as a result of having “paid their debt to society.” If they have completed their sentences and are living in the community and paying taxes, the argument goes, then they should be permitted to vote. However, there is seldom consideration of the adoption of a system such as that in Maine and Vermont, where persons who are incarcerated are permitted to vote. Below, we make the argument that, based on the faulty rationale for disenfranchisement, if one supports restoration for those who have completed a sentence, then logic demands that there not be an arbitrary distinction drawn at the entrance to the penitentiary. THE ARGUMENT AGAINST DISENFRANCHISING PRISONERS This series of legislative reforms indicates the growing momentum for reconsideration of felony disenfranchisement laws. Public opinion polls demonstrate support for change and receptivity to the reform of restrictive disenfranchisement laws. Yet most of the focus of the reform efforts has been targeted toward persons who have completed their sentences. To narrow the argument only to persons who have completed their sentences ascribes legitimacy to a policy of linking voting eligibility and criminal record. Instead, we argue that the rationale for disenfranchisement is flawed from both a legal and a policy perspective. The practice places an unconscionable burden on the individual to justify a “worthiness” to vote. Moreover, disenfranchising persons in prison accomplishes no legitimate objectives from the vantage point of prison administration. Those states that permit voting in prison have experienced none of the practical doomsday scenarios that proponents of disenfranchisement have predicted. Furthermore, the U.S. policy continues to be marginalized on a global scale, as international courts in a number of jurisdictions have recently rolled back prohibitions on voting by persons in prison. As such, disenfranchisement of persons in prison is no more appropriate a policy than denying the right to persons who have completed their sentences or who are under community supervision. THE FAULTY RATIONALE FOR FELONY DISENFRANCHISEMENT The rationale for prohibiting a person with a felony conviction from voting usually is grounded in the perceived “deservedness” of the individual. Thus, if you have committed a crime, you do not “deserve” to participate in the lawmaking process by voting. Some proponents of disenfranchisement fear that permitting someone to vote

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who has been convicted of a crime will put society in danger because such people are likely to vote for “procrime” candidates or to support a platform of “soft on crime” measures that will threaten society. Anxiety over the creation of a “felon voting bloc” has also been expressed as a rationale for restricting the vote. In essence, the concern is that persons with a felony conviction will form a cohesive, issue-voting bloc, or even a political action campaign. Preventing these individuals from voting, it is argued, protects the “purity of the ballot box.” The fundamental premise of these arguments in support of felony disenfranchisement is that the person with a conviction has demonstrated behavior that is irresponsible, immoral, and unacceptable, and society is justified in using that conduct as an indicator of the person’s fitness to vote. In short, these individuals are labeled as untrustworthy, and logic dictates that they should be prohibited from voting. This standard of untrustworthiness becomes synonymous with subversive thought, as society’s unwillingness to trust a person with a felony conviction manifests itself in a fear that the person will vote for policies that are contrary to the national interest. Thus, proponents of felony disenfranchisement are advocating for determining voting eligibility based on a person’s perceived moral fitness to vote—essentially a “character test”—as a means of allocating the franchise. Such a philosophy of restriction is borne from the same exclusionary soil as poll taxes and literacy tests and, as such, links the contemporary practice to dubious historical roots. In a 1999 hearing before the House Subcommittee on the Constitution regarding a bill to restore federal voting rights to certain persons with a felony conviction, Center for Equal Opportunity General Counsel Roger Clegg stated “[w]e do not want people voting who are not trustworthy and loyal to our republic.” He continued by observing that “[i]t is not unreasonable to suppose that those who have committed serious crimes may be presumed to lack this trustworthiness and loyalty.” Certainly one cannot argue that, at least in principle, it is a desirable goal to have all Americans be trustworthy and loyal, both in regard to voting as well as everyday life. However, we do not require persons who have not committed a crime to take a “trustworthy and loyalty” exam or oath before registering to vote. If this were the critical benchmark for permitting someone to vote, we would require an oath before a judge before being allowed to vote. This is ludicrous, of course, because this country views the franchise as a “right,” and the ability to have one’s voice heard through the political process should not be encumbered by one’s individual views. The essence of a democracy is that the government represents the will of the people, not that the government weeds out dissenting and minority populations or seeks to cull from the voting rolls those that the majority labels “untrustworthy.” CRIMINAL RECORD IS AN UNRELIABLE INDICATOR OF PERSONAL RESPONSIBILITY Using a person’s criminal record as an indicator of trustworthiness will frequently yield selective and arbitrary results. To rely on a person’s criminal background as the single most important indicator of one’s “fitness” to vote overlooks the practicalities that define criminal court processing and sentencing. Roger Clegg argues that it is

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reasonable to presume that those with a felony conviction are not loyal to the country. However, this position fails to acknowledge the different categorization of criminal activity from state to state. For example, two people could be arrested for the same crime, one in California and one a few miles away in Nevada. California defines the crime as a felony and Nevada defines it as a misdemeanor, which means that the person in California loses his or her right to vote while the person in Nevada is unaffected. Are we to presume that the person in Nevada is somehow “more loyal” than the person in California? Even within states there is a great deal of confusion and ambiguity about the types of offenses that result in the loss of voting rights. In Mississippi, the state constitution lists the offenses that result in disenfranchisement, but there is ambiguity in surveys of officials as to what types of activity are included under each offense definition.33 The result is that in practice, different agencies interpret the prohibition differently. In Alabama, crimes of “moral turpitude” result in the loss of voting rights, but the state has still yet to produce a document that accurately accounts for all offense types that can be classified under “moral turpitude.”34 This yields unpredictable results in which agency interpretation is the ultimate arbiter as to whether someone can vote. Other state laws have varied over time, such as in Tennessee and Washington, and the terms of the disenfranchisement are dependent on when the offense occurred. In Tennessee, there are actually five different disenfranchisement laws that cover different offenses and different periods of time beginning in 1973.35 In that case, a person who committed a crime in 1981 would be treated differently that a person who committed the same crime in 1982. Following the logic of disenfranchisement proponents, a person’s fitness to vote is based as much on when the offense occurred as on the charged behavior. State laws change and evolve over time, and an offense that was a misdemeanor in 1975 may be a felony the next year. In such a case, voting rights are dependent on when an offense is committed and on the decisions of the legislature as to the classification of that offense, rather than the loyalty of the person being charged. In addition, more than 95 percent of cases that are adjudicated are done so as the result of a plea bargain. In many of those cases, a prosecutor has the discretion to charge an arrestee with a range of offenses, some which are statutorily prescribed misdemeanors and some felonies. Thus, whether a person is convicted of a felony may depend as much on the discretion of the prosecutor as the actual conduct. The United States is a federalist country, and the states retain the discretion to define crimes as the legislature sees fit. This includes altering the definition of what constitutes a crime to reflect the desires of their constituency. In practice, this means that the same act may or may not be a felony, depending on the state or the time period. However, the underlying activity remains the same. This inconsistency illustrates the problem of attempting to link a criminal record with voting eligibility. In addition, the prosecutor’s discretion in charging decisions add an additional variable that has little to with the conduct of the individual and everything to do with the functioning of the criminal justice system. With these questions in place, it seems that the sound policy should be to make it incumbent on

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the state to demonstrate that a person is unfit to vote, rather than presume unfitness based on one’s criminal record. FELONY DISENFRANCHISEMENT CREATES AN UNDUE BURDEN ON PERSONS SEEKING TO VOTE Barring people from the voting booth based on dislike or fear of how one believes they will vote is antithetical to democracy. Whether this exclusion is based on race, religion, or criminal history, the effect is the same—a majority seeking to quell the speech of a minority with whom they disagree or fear. This restriction on political speech has more in common with a totalitarian regime than a participatory democracy. Moreover, this content-based exclusion runs afoul of the Constitution. Law professor Pamela Karlan, in a review of twentieth-century Supreme Court cases on voting rights, observes that “the [Supreme] Court has consistently rejected restrictions on the franchise as a reasonable means of promoting intelligent or responsible voting.”36 In addition, the court has “barred denying the right to vote to citizens who could not establish that they ‘possess good moral character.’”37 Despite these restrictions set by the court, and the direct link of current disenfranchisement rationale to the legacy of literacy tests and Jim Crow laws, modern disenfranchisement proceedings are grounded in the principle that if someone has a felony conviction, there is a presumption that the person is not of good character and should be prohibited from voting. This means that the offender has the burden of rebutting that presumption, which can usually be accomplished by completing supervision, depending on state law, in a prison or on probation and parole. This offender-centered burden makes no legal sense. The only logic for placing the burden of proving fitness to vote on the offender would be if he or she had engaged in behavior directly related to the act of voting. However, the link between a drug conviction or burglary and the right to vote is tenuous. The only relation is based on judgments of character, which are not relevant criteria in the consideration of an individual’s eligibility to vote. Thus, the absence of any direct link between criminal behavior and voting demands that the burden establishing a person’s eligibility to vote be placed on the state. At the very least, the right to vote should be a rebuttable presumption in favor of the defendant. In a scenario like that described earlier, the practical implications of shifting this burden to the state illustrate the fundamental problems with the policy as a whole. The state would be compelled to rely on testimony as to the character and responsibility of the person, which would surely lay bare the unseemly and arbitrary elements of felon disenfranchisement that result in the disproportionalities discussed above. An example of a system in which a rebuttable presumption exists (albeit in favor of revoking voting rights) is in the twelve states in which simply completing one’s sentence is not sufficient for restoration of rights. A person seeking to restore his or her right to vote must either wait a statutorily prescribed period of time or, in some cases, initiate proceedings to seek a pardon from the governor. One example of this system is in the state of Florida, in which the governor convenes four hearings a year to evaluate petitions brought by citizens with felony convictions and judges their

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suitability to have their voting rights restored. During the hearing, each petitioner addresses the governor directly and responds to a series of questions. The governor has been briefed on their cases before the hearing and has a copy of the file on hand. Drawing questions from the background of each petitioner, the governor might ask such personal questions as, “Have you quit drinking?” or “Are you still seeking anger management counseling?” Although these may be legitimate questions to be asked by a probation or parole officer, their relevance to one’s suitability to vote is a mystery. Imagine a scenario in which all American citizens were compelled to divulge their substance use habits and the intimate details of their domestic relations to a government official to justify their right to vote. For obvious reasons, this scenario is implausible. Instead, for persons over age eighteen years, the presumption is in favor of voting eligibility, and absent a strong policy goal, this presumption should be granted to persons in prison. FELONY DISENFRANCHISEMENT ACHIEVES NO PENOLOGICAL OBJECTIVE The issue of being at liberty in the community is a distinction that is not relevant for the purposes of considering voting eligibility. People are not forced to give up all rights of citizenship when they are incarcerated, and there is a long line of Supreme Court cases that address this very issue. The court noted, in Turner v. Safley, that “[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution.”38 A series of cases extend protections of prisoners’ rights to redress of grievances, racial discrimination, due process, and elements of the First Amendment.39 In determining whether a restriction on a person being held in prison is constitutional, the court stated that it must be “reasonably related to legitimate penological objectives” and cannot be an “exaggerated response” to achieving those objectives.40 Criteria used to determine whether the relationship between the restriction and the objective is reasonable include whether there is a “valid, rational connection” rather than a remote link, whether there are other means available of exercising the constitutional right, and the degree of effect of the exercise of the right on staff and other inmates.41 The lesson from the Turner case and its progeny is that prisoners do not lose all rights on incarceration, and any restrictions on constitutional rights must be demonstrated to have some link to administrative requirements in the facility. The standard test by which the court evaluates the constitutionality of restrictions within an institution is instructive when considering the merits of disenfranchising persons in prison. From a policy standpoint, it is difficult to see how a prohibition on voting would meet any of the criteria established in Turner. It achieves no discernible goal of correctional administrators, whether those goals are conceived of as rehabilitation, punishment, or population management. Allowing people in prison to vote, either with voting booths in a facility or via absentee ballot offers, no threat to staff or other individuals in the facility. Finally, the prohibition on voting is complemented by no other available alternative, as the only way that an American citizen can help choose

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political representatives is through voting in an election. Thus, the purpose of disenfranchisement is highly questionable. Moreover, the claim by proponents that disenfranchising persons in prison helps achieve the goal of silencing dissonant views ignores the fact that the First Amendment still protects their right to speak. Thus, people in prison can write letters to the editor, have books published, or petition elected legislators about issues of concern. Mumia Abu-Jamal has gained worldwide notoriety through a series of articles, books, and recordings that have highlighted his case and the conditions of persons confined in prison. Others have also written books or articles on politically charged topics. If disenfranchisement is intended to silence the voice of people in prison from the broader discussion of national issues, it fails in light of other available avenues of speech. VOTING IN PRISON FUNCTIONS SUCCESSFULLY WHERE PERMITTED Both Maine and Vermont have long-standing policies permitting voting for persons in prison, with no reports of difficulties by staff, administrators, or inmates. Rather, the facilities offer absentee voting in much the same way as a college student would vote while away from home. Maine and Vermont are laboratories to test whether the consequences threatened by proponents of disenfranchisement have come to fruition. In practice, they have not. There has been no increase in the election of “procrime” candidates and no evidence of an influx of “soft on crime” legislation. In contrast, people in prison who do vote appear to be concerned with the same issues as most Americans—the economy, the war in Iraq, terrorism—as well as local issues, such as legislation regarding bear hunting in Maine. The premise of these warnings about prison voting is facially unsound from a practical standpoint and presumes that people in prison are one-issue voters. In practice, the United States is a representative democracy with “winner take all” elections. There is no proportional representation, as in parliamentary systems. As such, the American voter has a narrow range of candidates from which to choose, and issue referendums are thoroughly vetted before placement on the ballot. The argument about the dangers of prison voting artificially inflates the practical influence that a small cohort of individuals might potentially have on a statewide election. Even assuming that all prisoners did vote in the narrow fashion described by the above argument, and even if they did seek to vote for procrime candidates who would support an agenda that was soft on crime , the likelihood that a candidate of such description would ever reach the ballot with enough support to win is preposterous. In truth, persons in prison vote from the same electoral slate as the general public and have the same choice of candidates. Thus, even if persons in prison chose to vote as described above, it is unlikely they will be able to locate such a procrime candidate to support. In a parliamentary system, with a wider slate of candidates, one can make the argument that a proportional representation system provides the mechanism for persons in prison to vote into office a legislator or two from the party that is soft on crime. However, in a winner-take-all system such as the American style of democracy, even the most biased and unforgiving view of prisoner voting habits

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would not create the scenario described by disenfranchisement proponents. As such, the principle underlying the argument for prohibiting persons in prison from voting is facially unworkable. INTERNATIONAL COURTS INCREASINGLY RECOGNIZE THE INJUSTICE OF DISENFRANCHISING PERSONS IN PRISON Internationally, the United States’ policy of disenfranchising current prisoners is not the norm. European countries as diverse as Denmark, Greece, and Ireland, as well as South Africa and Israel, permit people to vote while incarcerated.42 In a recent Canadian Supreme Court decision (Sauvé v. Canada), striking down the country’s policy of disenfranchising persons while incarcerated, the Canadian court ruled that the practice essentially rendered the government no longer the representative of those persons, thereby weakening the principles of a representative democracy.43 Regarding the message that society sends when it takes away the right to vote from people in prison, the court remarked that, “denying penitentiary inmates the right to vote is more likely to send messages that undermine respect for the law and democracy than messages that enhance those values.”44 This was echoed in a decision by the South Africa Constitutional Court in 2004, repealing that country’s practice of disenfranchising people in prison. In that case, the court rejected an argument by the state that permitting persons in prison to vote sent the wrong message about society’s stance toward criminal behavior. The court ruled that, “[a] fear that the public may misunderstand the government’s true attitude to crime and criminals provides no basis for depriving prisoners of fundamental rights that they retain despite their incarceration.”45 In another recent international case, the European Court of Human Rights followed the line of reasoning that controlled in Turner in ruling that, “[t]he mere fact of imprisonment has not been found sufficient to justify the imposition of blanket restrictions on the right of a prisoner to correspond . . . to have access to his family . . . to exercise freedom of expression . . . or to marry.”46 The court also was not convinced by the argument that losing the right to vote as a result of imprisonment is a valuable tool in shaping future civic responsibility, instead following the ruling in Sauvé and remarking that the “removal of the vote in fact runs counter to the rehabilitation of the offender as a lawabiding member of the community and undermines the authority of the law as derived from the legislature.”47 Despite the reluctance of the United States to take formal legal steps establishing voting as a fundamental right protected in the Constitution, it has been widely recognized by many foreign governments and courts that universal suffrage is a necessary component of a participatory democracy. The common thread between the decisions discussed above is a line of reasoning that mixes this acknowledgement of voting as a right, thereby only permitting its infringement after applying the strictest of scrutiny, and the fact that disenfranchisement meets no greater policy goal than pure retribution. In light of this global sense of the importance of voting as a means of ensuring that governments are responsive to their constituency, the United States’ policy of disenfranchising persons in prison stands as an outlier.

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DISCUSSION As the proportion of Americans living with a felony conviction continues to increase, particularly in the African American community, the effect of this country’s disenfranchisement policy will become more widespread. The practice of losing one’s right to vote as a result of a criminal conviction is an exclusionary policy that shares an infamous historical legacy with practices of racial discrimination and a general effort to restrict the integration of African Americans into the mainstream political community. The underlying equation of hatred and fear that fueled so many postReconstruction efforts to silence the black political voice continues today in the form of disenfranchisement. Moreover, the power of disenfranchisement to silence the African American community is as strong, if not stronger, than many of the notorious practices of the Jim Crow South. The sheer volume of African Americans who are legally disenfranchised underscores the point that Jim Crow is alive and well and that its modern face is felony disenfranchisement. Disenfranchisement is grounded in no solid legal principle and achieves no policy goal that speaks to the greater social good. Rather, it is retribution and fear that fuel its support. In the twentyfirst century, it seems difficult to believe that this country still permits character tests as a means of gaining admission to the voting booth. However, as long as disenfranchisement results from the receipt of a felony conviction, then the United States will fail to meet its founding principle of a government “for the people, of the people, and by the people.” NOTES 1. Jeremy Travis, “Invisible Punishment: An Instrument of Social Exclusion,” in Invisible Punishment: The Collateral Consequences of Mass Imprisonment, eds. Marc Mauer and Meda Chesney-Lind (New York: New Press, 2002), 18. 2. For a discussion of the role of criminal status and stigma, see Erving Goffman, Stigma: Notes on the Management of Spoiled Identity (New York: Simon and Schuster, 1963). 3. Travis, “Invisible Punishment,” 18. 4. Alec Ewald, Punishing at the Polls: The Case Against Disenfranchising Citizens with Felony Convictions (New York: Demos, 2003), 17–18. 5. Section 2 states that any state abridging the right to vote for male citizens above the age of twenty-one years will have their representation in Congress reduced in kind. However, there is an exception for “participation in rebellion, or other crime.” This phrase, “or other crime,” would become critical as a counterweight to the Equal Protection Clause of Section 1 of the Fourteenth Amendment. 6. U.S. Const. Amend. XIV, section 2. 7. Andrew L. Shapiro, “Challenging Criminal Disenfranchisement under the Voting Rights Act: A New Strategy,” Yale Law Journal (1993): 540–41. 8. Ibid., 141. 9. 1 Official Proceedings of the Constitutional Convention of the State of Alabama, May 21, 1901, to September 3, 1901, as quoted in Hunter v. Underwood, 471 U.S. 222, 229 (1985).

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10. J. Morgan Kousser, “The Undermining of the First Reconstruction: Lessons for the Second,” as cited in Shapiro, “Challenging Criminal Disenfranchisement,” 538. 11. 471 U.S. at 224. 12. Ibid., 225–29. 13. Ibid., 233. 14. See Felony Disenfranchisement Law in the United States (Washington, DC: The Sentencing Project, July 2005). 15. Jeff Manza and Christopher Uggen, Locked Out: Felon Disenfranchisement and American Democracy (New York: Oxford University Press, 2006). 16. Alabama, Arizona, Delaware, Florida, Kentucky, Maryland, Mississippi, Nevada, Tennessee, Virginia, and Wyoming. 17. Manza and Uggen, Locked Out, 176. 18. Ibid., 177. 19. Jamie Fellner and Marc Mauer, Losing the Vote: The Impact of Felony Disenfranchisement Laws in the United States (New York: Human Rights Watch; Washington, DC: The Sentencing Project, 1998). 20. Ibid., 9. 21. Shapiro, “Challenging Criminal Disenfranchisement,” 554–60. 22. Ibid., 558. 23. Manza and Ugger, Locked Out, 178. 24. Includes all females. 25. Ryan S. King and Marc Mauer, The Vanishing Black Electorate: Felony Disenfranchisement in Atlanta, Georgia (Washington, DC: The Sentencing Project, 2004). 26. Ibid., 3. 27. Aman McLeod, Ismail K. White, and Amelia R. Gavin, “The Locked Ballot Box: The Impact of State Criminal Disenfranchisement Laws on African-American Voting Behavior and Implications For Reform,” Virginia Journal of Social Policy and the Law 11 (Fall 2003): 67–88. 28. Ibid., 79. 29. Ibid. 30. Harvard Law Review, “Note: The Disenfranchisement of Ex-Felons: Citizenship, Criminality, and ‘The Purity of the Ballot Box,’” Harvard Law Review 102 (April 1989): 1300–317, 1313. 31. Christopher Uggen and Jeff Manza, “Voting and Subsequent Crime and Arrest: Evidence from a Community Sample,” Columbia Human Rights Law Review 36 (2004): 193–215, 213. 32. Ibid., 205. 33. Alec Ewald, A ‘Crazy-Quilt’ of Tiny Pieces: State and Local Administration of American Criminal Disenfranchisement Law (Washington, DC: The Sentencing Project, 2005). 34. Ibid. 35. Ibid. 36. Pamela S. Karlan, “Convictions and Doubts: Retribution, Representation, and the Debate Over Felon Disenfranchisement,” Stanford Public Law and Legal Theory Working Paper Series, Research Paper 75, 8. 37. Ibid. 38. Turner v. Safley, 482 U.S. 78, 84 (1987). 39. Ibid. 40. Ibid., 87, 89.

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41. Ibid., 89–90. 42. Brandon Rottinghaus, Incarceration and Enfranchisement: International Practices, Impact and Recommendations for Reform (Washington, DC: International Foundation for Election Systems, 2003), 22. 43. Ibid., 84. 44. Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519. 45. Minister of Home Affairs v. National Institute for Crime Prevention and the ReIntegration of Offenders (NICRO), Constitutional Court of South Africa, Case CCT 03/04, March 3, 2004, 28. 46. Hirst v. the United Kingdom (no. 2), The European Court of Human Rights (Fourth Section), March 30, 2004. 47. Ibid.

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P A R T

V

FIRST PERSON: INSIDE U.S. PRISONS

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C H A P T E R

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“A TRUE DEMOCRACY”: TALKING WITH EDDIE ELLIS Blanca Vázquez

Eddie Ellis is the president of the Community Justice Center, a New York criminal justice advocacy organization, and is a consultant for the Soros Foundation’s Open Society Institute, Criminal Justice Initiative. He served twenty-five years in prison for a crime he did not commit and has always maintained his innocence. He is a writer, lecturer, community activist, and former leader of the Black Panther Party. The following interview was prepared as an oral history within the context of the Africana Criminal Justice Project by writer and educator Blanca Vázquez. Blanca Vázquez: I want to start at the beginning: How did you grow up? What I mean by that is: Where did you grow up? Who raised you? What were the values you were taught? Eddie Ellis: I was born and raised in New York. I grew up in the northern part of Harlem. My parents—my mother and my father—immigrated to this country from Jamaica. They came here separately and later met in this country and got married. I’m the oldest of three children. My folks had traditional Jamaican values, which are rooted in family, religion, and education, and they instilled those values within all of us. My dad was a Pan-Africanist and was part of the Garvey movement. In fact, Garvey and my dad came from the same parish—same county—in Jamaica, although Garvey was a lot older than my father. For my father that was an enormous source of pride, and I think he passed it on to all of us. My father was an accountant in Jamaica. He came to the United States in the late twenties as a young man, looking to become a professional accountant. And, of course, in those days, black people were not being hired for those kinds of positions, so ultimately he was forced to become a Pullman car porter on the railroad. He channeled a lot of his energy and anger into union activities. He was a member and organizer for the Sleeping Car Porters Union, and eventually he became a shop steward. So my father was a working-class guy with strong union ideals, which for him meant

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that he had a strong liberal, leftist, political orientation overlaid by his Garvey PanAfrican philosophy. For the most part, he passed that on to my brothers and I, and that formed the core of our ideas—certainly our political and probably our social values as well. BV: When did your activism start? EE: My activism started in the early sixties when I did some traveling in the South. I became very familiar and friendly with several people who were involved with the Student Nonviolent Coordinating Committee (SNCC) movement—particularly toward the latter part of that movement as it began to move away from nonviolent direct confrontation into its Black Power phase. I traveled extensively in Lowndes County, Alabama, with Kwame Toure, who we knew at the time as Stokely Carmichael, but who later changed his name.1 I began to learn organizing in that context. After that I became an organizer for the Black Panther Party and was one of the spokespeople for the party on the East Coast and helped establish and organize the New York chapter. As a result of that, I came to the attention of the FBI and was targeted by the counterintelligence program COINTELPRO, which was designed to neutralize Black Panther Party leaders, mostly through false accusations that ultimately led to criminal convictions and incarceration. This is essentially what happened to me and thirty or forty other Black Panther Party people during that period of time. I continued doing a lot of organizing while I was in prison. BV: Let me back up a little bit. I want to know more about how you started getting political. Did you go south because you were already part of an organization? Where did you get pulled in? EE: Well, I think it was probably a combination of things. Certainly, my upbringing and my family situation, particularly with my father and my father’s friends and relatives; it was a very political atmosphere. There was always a lot of political discussion at home, and the political discussion was, for the most part, on a global level. My dad had relatives who had gone to England to study. But he came to the United States. So there was always a global perspective in their discussions. Of course, when I was a kid, it didn’t really mean a lot to me, but a few things stood out. One was the movement, in the late fifties, towards Jamaican independence, which Jamaica finally got in 1962. My dad was a hardcore Jamaican nationalist, a People’s National Party kind of a person. So, a lot of my political understanding, I think, was shaped initially by just being in that atmosphere and, as I began to get a little older and started asking questions, by hearing the responses that I would get from family and friends who were Jamaican nationalists but who had a global perspective. Also, a lot of my friends, and the people I associated with during that period of time, were either writers or artists or involved in the Human Rights movement. Actually, I was interested in a young lady who was very much involved in the student movement, and she went south to do some organizing and I went south to make sure that we still remained friends after the organizing was over. That was my introduction to on-the-ground, in-the-community organizing in the southern states. Because my parents are from Jamaica I didn’t have a southern racial experience, in terms of the

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really hardcore racist, very strict segregationist type of environment that existed in the South in the late fifties and early sixties. So this was a new experience for me. BV: How did you handle that? Wasn’t it a shock coming from up north? EE: Well, it was, but, in those days, we always traveled with people who were from the South, and they would advise you on how to handle it. In fact, one of the of internal conflicts in SNCC evolved from the fact that a lot of northern students, particularly black northern male students—but a lot of women also—had a tremendous amount of difficulty coming to terms with both the nonviolent aspect of the movement as well as the acquiescence to segregation and American Apartheid. So there was always that tension that existed within SNCC. Ultimately, it culminated in the election of Stokely Carmichael—Kwame Toure—as the chairman of the organization, which moved SNCC further and further away from nonviolent civil disobedience into a more Black Power–oriented, direct confrontation, armed selfdefense posture. And, of course, that was really the beginning of the end of the organization because, at that point, the organization began to lose a lot of its financial backing and resources. But there was always that tension in the organization. I think it was exacerbated by the enormous influx of people from the North, particularly northern urban folk who brought a different persona to that environment. So it was like a clash of culture and political ideology. There was King’s voice and then there was Malcolm’s voice. Those of us who grew up in New York and in Harlem revered Malcolm X. Malcolm was, as Ossie Davis said, “Our shining black prince.” I remember on Saturdays it was almost mandatory that you traveled down to 125th Street around 1:00 or 1:30 to catch Malcolm because he was going to be speaking for the next two hours, and you wouldn’t want to miss it. I remember Chuck D said once that hip hop was the CNN for the next generation. Well, Malcolm was almost like the CNN for our generation because he was so well read and so knowledgeable and had such a global reach, both during his time in the Nation of Islam and later, when he left the Nation and began to travel. Our collective political ideas, and certainly mine, in particular, were shaped and formulated as a result of the teachings of Malcolm X and other urban activists. We brought that urban activism and militant flavor to some of the things that we did, and certainly to much of our travels throughout the South in the mid-sixties and to the March on Washington in 1963. We began talking about collective action in the northern cities because the northern cities for the most part had not been organized. And several people who were part of SNCC were also part of what they called, at that time, the Northern Student Movement. I was associated with a lot of those people, like Bill Strickland and Al Pertilla, during that period. We began talking about ways in which we could organize northern urban areas. And, out of that need, out of the need to do that organizational work and activity, we began to merge the ideas that evolved from the southern organizing experience, particularly the Lowndes County experience, which produced the Black Panther Party.2 At the same time, Bobby Seale and Huey Newton and all the people on the West Coast—in Oakland—were developing the Black Panther Party for Self-Defense, and that seemed like the ideal vehicle for us to begin moving in. SNCC was rapidly self-destructing and being destroyed externally, and a lot of SNCC organizers were looking for places to go and

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things to do, particularly those who had come from the North. Eventually they gravitated toward the Black Panther Party and began doing organizational work in that context. BV: But what drew you personally to the Panthers instead of other organizations and social movements? There was organizing everywhere, so why the Panthers for you? EE: I was very close with several people who were part of a group called the Revolutionary Action Movement that undergirded the Black Panther Party movement in the Midwest and on the East Coast.3 They led me into the Party. I thought that the values of the Party and its basic platform, its Ten-Point program4—as well as its basic stance around armed self-defense and protecting and defending neighborhoods—were sound. I agreed with its position vis-à-vis police brutality and police misconduct on the street, and [with] the Party’s confrontational aspects. I was very attracted to the audacity that Party members displayed by their willingness to have confrontations with the police in instances when the police were clearly wrong or acting in a manner that was outside the purview of their duties. That political posture, which had some hint of military structure and military discipline, at the time, we thought, ultimately, would be equal if not superior to police power. I suffered enormously through the whole nonviolent period, particularly as it began to get uglier and uglier and the organizers and the demonstrators were physically abused. Again, coming from Harlem, it was very difficult for me to conceptualize the whole idea of turning the other cheek in the face of physical violence. Somebody smacks you in the mouth; my response—it’s almost intuitive, I guess, certainly due to social conditioning—is to smack back and try to smack back harder. It was very difficult for me to understand—either personally or politically—this nonviolence. This was prior to having read Gandhi and Thoreau and some other disciples of civil disobedience and nonviolence. I understand it now better intellectually, but emotionally and physically I still don’t agree. So, in the case of the Black Panther Party, you’ve got organizational guys who are carrying weapons and who are challenging the police department. They have a fairly well thought out program and are saying that, at some point in time, we need to take control of the community and begin to do our own community development. We need to protect the community against police abuse. We know that this kind of activity is going to be serious and that in any conflict with the police, the two advantages that they will have are their badge and, more importantly, their gun, which signifies a certain amount of power. But Party members were carrying weapons and were prepared to use those weapons. Once the police departments, on a national level, began to realize that these people were serious, were confrontational, and would shoot, I think the power dynamic began to change in a way that we had never seen in America. You know, J. Edgar Hoover said that the Black Panther Party was the single most dangerous threat to America’s national security. But what he really meant was that if the idea of an organized group of people of color with weapons in the community serving as a checks and balances to police abuse ever caught on in a broader context, that would really be the beginning of some very revolutionary thought and action in America. As a result of this feeling, the FBI and the federal government and all the other intelligence agencies did everything that

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they could to destroy the Party and, ultimately, they were successful. But, for me, what was compelling was the idea that a lot of the things Malcolm X talked about in terms of black manhood and community development and self-defense were realizable in this organizational structure to the degree that they were not realizable in other organizations, like the NAACP5 or SCLC6 or CORE7 or some of the other groups that were around at the time. BV: You were a young man, at the time? How old were you? EE: I was in my early twenties at that point. BV: I was really struck when you said you “suffered” when seeing peaceful demonstrators get beaten. Did you think about what you were going to be up against? Were there any discussions about what it meant that the cops were armed too? EE: There wasn’t much discussion about consequences as much as there was about tactics. How do you deal with a police force that is well-organized and well-armed and well-trained? Our feeling was that we needed to be at least equally well-trained and well-disciplined. Discipline was one of the keystones of the Party’s training procedures. Interestingly, in addition to the self-defense aspects of the Party, what attracted me most to the Party was that we had a solid platform for community development. We had a newspaper that was the largest black newspaper in America at the time. It came out weekly and had a circulation of over 125,000. And, even more importantly, and perhaps the lasting legacy of the Black Panther Party, which most often is not mentioned, is the Breakfast Program. We ran a Breakfast Program that fed close to seventy to eighty kids a day in sixty cities across the country. And we financed it ourselves with no government money. This was all done with local community resources. In fact, the Black Panther Party Breakfast Program was the forerunner of Head Start, which most people in this country don’t know. So, in addition to having this militaristic community defense posture, we also were involved in community development ideas. For instance, there was talk in the Party of opening up a series of factories in which we would have manufactured clothing for the community. Very little of this is known or recorded in the history of the Party. So it was kind of a holistic approach to community development that was rooted in self-defense and that had various other kinds of aspects that lent itself to community empowerment as well as economic and social development. BV: And rooted in love for the community. EE: Yes, the primary impetus for people to involve themselves in this work was love of community—certainly, without a doubt. BV: Let’s talk about how you ended up in prison. What happened? EE: The FBI had this program called COINTELPRO. Originally, it was designed to neutralize the Communist Party. Having done that they turned toward militant leftwing organizations, including Martin Luther King’s organization, the Nation of Islam, and certainly, during the mid-sixties period, all the organizations that were involved in the anti–Vietnam War protests. The counterintelligence program was a program that involved a series of what were called dirty trick and black-bag operations, illegal and unconstitutional invasions of privacy and other illegal actions on

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the part of the FBI. They were justified covert operations; justified by the fact that they were defending national security. One of their most successful counterintelligence operations was the operation to infiltrate, neutralize, and destroy the Black Panther Party. That’s verbatim from the mission statement that comes from J. Edgar Hoover’s directive to local FBI offices. The counterintelligence program took the form and shape of infiltrating the Party with people who were FBI undercover agents and/or people who were FBI informants—paid informants and other informants—along with local law enforcement undercover people and local law enforcement informants. The Black Panther Party was riddled with undercover FBI agents and informants—probably more informants than undercover agents. Part of the counterintelligence program was proactive. There is a very fine legal line between provocation and entrapment, and we’re not really sure and neither are the courts where one starts and the other stops. What I mean is that if you have a FBI agent that, for argument’s sake, suggests that we burn down Central Park, and he provides the gasoline, a vehicle to move the gasoline, as well as the map to do this, and then some other people perform the act or even discuss performing the act, then it’s questionable whether or not that’s legal provocation or whether or not that’s entrapment. Undercover agents and provocateurs and confidential informants came up with all kinds of wild crazy schemes and ways the Party should be operating in a “revolutionary context.” And this left the Party very vulnerable. One of the favorite ploys of FBI agents was to procure weapons and ammunition for the Party and actually bring them to Party residences and Party offices, and then inform the FBI about the weapons they had bought—probably from the FBI—and brought to the Party headquarters. Then from there they call the FBI or local law enforcement, raid the office, find the weapons, and arrest everybody. Another part of COINTELPRO was the dissemination of false information, both internally and externally. COINTELPRO maintained a whole series of relationships, for instance, with journalists, and media folk—whether television, radio, and newspaper—and they would float stories and misinformation about the Party and about people in the Party that would ultimately appear in the press and give credence to lies. They would also foment dissent within the Party by spreading false rumors and creating dissension among Party members and Party members’ families. One of their favorite tactics was accusing Party leadership of very serious crimes—in most cases homicides—armed robberies and other crimes that carried long prison sentences. The FBI and the local police were working together because COINTELPRO had been sanctioned by J. Edgar Hoover, which means it had the blessing of the Justice Department, which ultimately meant that the president approved of these actions. Therefore, local law enforcement was not apprehensive about creating false charges against people or bribing and coercing witnesses, including police officers, to testify falsely against people and then secure convictions for very serious crimes and ask for the maximum sentences allowable for those crimes. That’s basically what happened in my case. I was accused of killing a person that I had never seen before. There was absolutely no connection between the two of us, no physical evidence that linked me with the crime, and no motive or any reason why I would want to kill the person. I was

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ultimately convicted on the testimony of two police officers who claimed to actually have seen this shooting take place and to have apprehended me in the vicinity recently or shortly thereafter. They were the only two witnesses in the trial that testified in any way to connect me to the crime. On the basis of that testimony, I was convicted of murder. I was sentenced to twenty-five years to life in prison. BV: How old were you at that time? EE: I was twenty-four at the time, and I spent the next twenty-five years in prison. Actually, twenty-three. It was twenty-five years and I did twenty-three years in maximum and medium security prisons and then two years in a minimum security, work-release type facility. I got arrested in 1969 and went to trial in 1970. At the time, of course, we had very little knowledge about the FBI counterintelligence program, all the kind of dirty tricks that were going on.8 In 1975, there was this major investigation by the Church Committee in the United States Senate that uncovered these abuses by the FBI and the CIA. COINTELPRO and a series of other covert CIA/FBI-directed operations and abuses came to light. The Church Committee’s investigation put that period and certainly much of what happened with the Party in a different context.9 BV: I want to know what happened to you at the time of your arrest. You were a young man, at the time. You had a political background. You were politically conscious—a militant, in fact—and you get set up. You were twenty-four when you entered prison. What had you been doing before you were incarcerated? EE: Because my case was very political and well-publicized in New York, in terms of television and newspaper coverage, it was very clear to me that I was in prison because of my involvement with the Black Panther Party and my writing. I was the national news editor of a magazine called the Liberator, a very militant Black Nationalist magazine, at the time. However, my first five years in prison, I didn’t understand the picture. I knew why I was there, I knew it was political, but I didn’t have all the pieces because, at that time, we didn’t know about COINTELPRO. We just figured that this was a set-up. There were a lot of set-ups going on, but we didn’t know that it was a very well thought out, very coordinated plan, or what the dimensions of the plan were. In 1975, five years after I entered prison, information about COINTELPRO came out. Some militant antiwar activists raided the FBI offices in Illinois, broke into the office, and procured all of these documents that laid everything out. As a result of that, the Church Committee held hearings and began to investigate all of the illegal and unconstitutional abuses, the invasions of privacy, and other kinds of law enforcement abuses against United States citizens. At that point, my understanding became clearer and I really began to understand why I was in prison. This wasn’t a single, personal attack on me, Eddie Ellis; I was a part of a larger plan to destroy the militant, left political movement in the United States. Eddie Ellis was a small piece of a much larger picture that went as high as you can go. BV: Did you start organizing in prison from the get-go, or after you had been there a while and the circumstances of your incarceration started coming to light? Or were you just trying to adjust? What was happening?

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EE: Because prison populations are disproportionately represented by people of color and, specifically, people of color from very select target neighborhoods, when I went to prison I ran into a whole wealth of people that I knew from the neighborhood— from the Bronx, from Harlem. These guys that I grew up with were involved in what we would consider to be quote-unquote “criminal activity,” but they were friends of mine—we went to school together, I dated their sisters, and we went to the same parties. So there was a continuation of relationships that had been interrupted as a result of prison. These were old friends of mine and they had followed my case in the media, and at a certain level, people who were involved in the movement were viewed in prison in a special context. We weren’t just ordinary criminal types, but guys who were trying to do some positive things and had been busted because of it. Prison is a very macho, hypermasculine kind of environment. And there’s a very defined hierarchy and pecking order. At the top of the pecking order are people who are perceived to be fearless. All the people who were involved in political activity, especially people who were involved in the Black Panther Party and later the Black Liberation Army were perceived to have this fearless persona. They were seen as fearless because of their willingness to do battle with the police. So, being a Party member brought with it a certain respect that would probably have been very difficult to acquire otherwise. Consequently, most people, including myself, who came to prison from that political experience were almost automatically assigned to the top of this pecking order and hierarchy of hypermasculinity. That served me well in the initial stages of my imprisonment. Prison is very strictly segregated in terms of neighborhoods and boroughs. We had the Manhattan corner, the Brooklyn guys, the Bronx guys. Within those groupings you have the Bedford-Stuyvesant guys and the East New York guys and the Harlem guys and the Lower East Side guys. You got the El Barrio guys. So there are all these different groupings. At a certain level, they’re competing with each other for various kinds of resources within the prison. But, at another level, particularly during that period—say, from 1970 to 1980—there was a political consciousness that came after the rebellion at Attica prison in 1971 that bound people together. When I first went to prison, I was at Sing-Sing. I stayed there for a couple of months and then was sent to Attica about a year prior to the rebellion. I was there in September 1971 when the rebellion took place. The rebellion evolved out of the work that the prison study groups were doing. Study groups were small organizing collectives in the prison and a lot of their work was organizing prisoners, raising their level of consciousness, and beginning to develop internal defense mechanisms that would allow us to confront prison brutality and oppression through more political ways. One of the things that was foremost in our minds, at that time, and that probably still is in prisons to an even greater extent, is making linkages between the people in prison and the outside communities from which they all come and to which they will ultimately return. There was a tremendous push to bring people from these communities into prisons to interact with prisoners so that there could be some exchange both of ideas and of resources. I was very much in the middle of this activity most of the time that I was in prison. I spent most of my time doing this kind of organizing and consciousness-raising.

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But I was also educated in prison: I went to college in prison. I got an associate’s degree, then a bachelor’s degree, and then a master’s degree—all while I was in prison. I then taught for the last ten or twelve years I was in prison. I was a teacher. I taught classes on political education and organizing, as well as academic studies. One of the things that we did most successfully was incorporate the two—even in adult basic education, which is really fundamental reading and writing for folk who were illiterate and at the GED level. The academic planning was informed by our political sensibility. We were reading people like Paulo Freire and talking about developing a different pedagogy, a new approach to education that infused academic study with a political consciousness. We were taught to do a lot of that work in the prison and to a large extent we were fairly successful. BV: After the assault on the prison how did life change for you and for folk like you who were raising consciousness and organizing? EE: After the assault most of the people who were in Attica were shipped out of the prison, including myself. The assault was on September 13, 1971, and the next day I was sent from Attica prison to a prison called Comstock, Great Meadows Correctional Facility, just south of Albany. I spent a good portion of the next year there in segregation because all the people who came from Attica were perceived to be troublemakers, which really meant that they were organizers or agitators. When I was allowed to come out I was met with an enormous amount of enthusiasm around organizing that particular prison. Several efforts had been already taken up by people who had come out before me and had started setting up study groups and classes. As a result of that work, I was transferred out of Comstock into Dannemora (Clinton) prison, which was way up north. Wherever I went I attempted to either develop a new study group or connect myself to an existing one. In most instances, study groups already existed so it was a matter of attaching myself to the group and then sharing with them materials I had that they may not have had and vice versa. I only lasted a few months in Clinton prison; then I was shipped to Green Haven prison. So for that first two years after the rebellion in Attica I spent a lot of time being moved around from place to place until I finally wound up in Green Haven. Ultimately, the prison authorities decided that they would get everybody who they considered to be troublemakers and agitators and put them in this one prison. Which is what they had done in Attica and ultimately what, I think, created the tension that resulted in the rebellion. But now they had a different tactic. They put all these militants in this one prison and then they began to talk about ways to channel our anger, ways we could educate ourselves through peer education and develop programs and activities that spoke to our needs. I think the idea was to involve people in activities that lent themselves to personal development, but were designed, at the same time, to minimize or neutralize the anger and the hostility that existed. Also, during this period of time, as a result of the demand at Attica for more prison guards of color, there was this enormous influx of prison guards of color, particularly Latinos and blacks. The black and Latino guards came from New York City, and they brought a different relationship to the prison. Absent in this influx of black

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and Latino guards was a lot of the very repressive behavior that the white guards exhibited and their feelings of hostility. So this alienation, culturally and otherwise, that the white guards demonstrated was absent with this influx of black and Latino guards. They brought a different sensibility; they understood urban culture. We shared a lot of similarities, a lot of commonalties. In many instances, they were people who we went to school with or with whom our brothers and sisters had gone to school. They had come out of the neighborhood. Certainly, in most of the prisons south of Albany a different environment was created that was more conducive to studying and learning; educational programs proliferated and other kinds of peer instructional programs were very prevalent. There was an open door policy that allowed people from the community to come in on a regular basis. We developed a series of programs in the prisons that were designed to empower folk and to raise their level of consciousness. For about a good ten-year period I would say, certainly from 1971–72 to about 1982, this was allowed to develop—not just in New York but on a national level. BV: So there was a reform period and then something changed—the population coming into prisons began to change. You are still organizing, teaching, and developing, but how is your work being affected by these changes in the prisoner population? EE: There were really a couple of differences. Prisons are microcosms of society, in general, and prisons reflect what’s going on in society. So, throughout the sixties and the seventies, when there was a very militant, very vibrant human rights, Black Power, and antiwar movement, the prison population and prison consciousness reflected that. However, starting in 1980 and the advent of a new approach to government from the Republicans—Ronald Reagan, Edwin Meese, and the Justice Department—you get the beginnings of a “get tough on crime” approach to law enforcement and the diminishing of government services. There was a lack of commitment to very fundamental things: housing, education, and health care. You also get the movement to begin to privatize all of these services. And of this was reflected in prisons and communities in the eighties. You also have the influx of crack cocaine, the development of street organizations that control the sale and distribution of crack cocaine, and the rise of territory rivalries and the expansion of the drug trade. As a result, the prison population itself became fragmented along these street organizational lines. So, in addition to all the other fragmentation that existed—ethnic, geographic, religious— the various populations became less unified, less able to act in any collective context. It made it much easier for prison authorities to control the population and to be very repressive. That was the dominant mode of prison life, particularly during the late eighties and the early nineties. More and more you see the street organizations—the ñetas, the Latin Kings, and ultimately, the Bloods, Crips, and the Five Percent Nation. Various other kinds of street organizations began to vie within the prison for territory and power—but not power in the traditional sense that we understand it— rather, the power and the ability to pursue activities they feel are only in their own best interest. There was a permissive policy on the part of prison administrations to

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allow these things to take place, in a limited context, because it furthers the idea of divide and conquer. As long as competition and physical violence act as ways to resolve disputes, they play right into the hands of prison administrators. I’m sure that given a choice between a solid, well-organized, unified prison population and a very fragmented, divided population, the prison authorities would always opt for the latter, even if it meant having to turn a blind eye to certain activities that are taking place in prison—like drug trafficking, for instance—in order to maintain rule by divide and conquer. So it became more difficult for progressive people to organize in this context and to raise levels of consciousness and to create cohesiveness. Certainly, it became almost impossible to organize concerted actions; that is, actions of a protest nature. For instance, during the eighties, we were able to organize people around legislation that would shut prisons down. We would call for a general strike and nobody would go to work. We could close the whole prison down, particularly those prisons, the maximum security prisons, which are the larger prisons that house the prison labor industry. Prison industry was the lifeblood of revenue development for the prison (industrial) complex. A prison like Comstock produces soap. They produce all the soap that’s used in all the public hospitals and all public buildings in New York State and half a dozen other states in Comstock. And who knows how much—thirty, forty, fifty, or sixty million dollars—may be involved in these sales. Closing down that prison factory is a significant reduction in revenue, so it provided a basis for prisoners to negotiate from a position of strength. Most of that activity dissipated throughout the eighties and nineties because of this factionalism—tribalism almost. And, of course, once that happens prisons become very repressive places because there’s no organized resistance. BV: It became harder to organize. . . . EE: It became harder to organize at the same time that the repression became greater, which is an inverse proportion. Generally, as the repression gets greater the easier it is to organize in resistance. But now, because of this tribalism, this factionalism—this group doesn’t want to cooperate with that group on any issue, not even issues that speak to their own self-interests. That’s a very serious kind of problem. BV: What’s your dream? What’s your dream for your community now? What’s your dream for this country? EE: That’s a big question. My dream right this minute is to organize people who were formally incarcerated, on a national level, and I’m in the process of doing it with the NuLeadership Policy Group. We estimate conservatively that the number of people in the U.S. with criminal convictions in their background is probably around thirteen million and, at most, thirty million people. And so my vision would be to put together an organization comprised of these people, register them to vote, begin to develop a whole new paradigm, a new way of looking at what we call a “criminal punishment system.” Most people call it the criminal justice system, but it’s more criminal than just. The justice part is really punishment, so we’ve redefined it to mean criminal punishment. Manning Marable says that the site of the greatest oppression will also be the site of the greatest resistance. People who are at the bottom and who are marginalized

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both have the greatest incentive and motivation for organizing and struggle. But even more importantly, that kind of oppression and marginalization begins to produce among the intelligentsia of that group a new vision of what’s possible and of how things could be different. Given the political, social, and economic power and wherewithal to create a new paradigm or a new vision, they would. The vision exists certainly for a more democratic America, for an America that really fulfills its constitutional and legal promises. An America that treats people in an equitable way—regardless of race, ethnicity, gender, or other kinds of labels. Across the board that vision is shared by a significant portion of people in this country. The problem is: How do you translate that vision into action? Since the civil rights movement we haven’t seen a movement broad enough—in terms of numbers, moral authority, and operations—to move society from where it is to another place. I believe that people who are formerly incarcerated, simply because of their sheer numbers, have the potential to do this, if organized within some systemic, national, and perhaps even international context that had some fundamental agreement about basic principles. My vision for myself would be: How can I contribute to the organization or to organizing that body so that, at some later point in time, it has the cohesiveness to begin making societal changes? BV: Because the group is organized around a concept of the democracy that’s supposed to be at the core of our beliefs. EE: That’s right. A true democracy. Not this fraud of democracy that’s being perpetuated. One thing that’s really important to note is that all the things that I talked about—the abuses and the illegalities of the FBI counterintelligence program— are now all legal under the Patriot Act. We’re looking at a very repressive state police apparatus that will require national organizing and a new vision in order to counter. In the absence of that, the state police, the state law enforcement authorities will have become so strong that all the civil liberties that we enjoy will ultimately disappear. NOTES 1. The charismatic Trinidadian Stokely Carmichael became Chairman of the Student Nonviolent Coordinating Committee in 1966. Carmichael sought to unify the black community under the banner of Black Power. He joined the Black Panther Party for a while in Oakland, eventually changing his name to Kwame Toure and living in Africa until his death in 1998. 2. “The black panther was used as the symbol [for the Black Panther Party] because it was a powerful image, one that had been used effectively by the short-lived voting rights group the Lowndes County (Alabama) Freedom Organization. The term ‘self defense’ was employed to distinguish the Party’s philosophy from the dominant nonviolent theme of the civil rights movement, and in homage to the civil rights group the Louisiana based Deacons for Defense.” http://www.blackpanther.org. 3. Maxwell Sanford organized the Revolutionary Action Movement (RAM) in Philadelphia in 1963. Malcolm X was a member. The roots of the Black Panther Party are to be found in RAM’s membership. There is a direct link between Stanford,

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Malcolm X, and Huey Newton. RAM opposed Martin Luther King’s nonviolent integrationist philosophy, believed in armed self-defense and radical Black Nationalism, and had an anticapitalist worldview. (RAM, The Black Power Movement, Part 3: Papers of the Revolutionary Action Movement, 1963–96), available at http://www.lexisnexis.com/ academic/2upa/Aaas/RAM.pdf. The Black Panther Party’s Ten-Point program called for freedom, full employment, housing, education, the exemption of black men from military service, black prisoners to be set free, an immediate end to police brutality, and a UN-supervised plebiscite so that black people could determine their national destiny. See http://lists.village.virginia.edu/sixties/HTML_docs/Resources/Primary/Manifestos/ Panther_platform.html. Founded in 1909 by Ida Wells-Barnett, W. E. B. DuBois, and others, the National Association for the Advancement of Colored People led the “call” to renew the struggle for civil and political liberty for African Americans, http://www.naacp.org. The Southern Christian Leadership Conference’s roots are in the Montgomery Bus Boycott of 1955, when Rosa Parks was arrested for refusing to give up her seat to a white man on the bus. The yearlong boycott that followed raised SCLC founder Dr. Martin Luther King Jr. to national prominence. The SCLC used mass demonstrations, civil disobedience, and nonviolence as its primary tactics, http://sclcnational.org/history.asp?siteid=2607. The Congress of Racial Equality, founded in the 1940s by pacifist James Farmer, worked for racial equality through nonviolent means in the Southern civil rights struggles of the 1960s and 1970s. The organization has been bizarrely conservative in recent decades. On the night Chicago Black Panther Party leader Fred Hampton was killed in 1969, his chief of security was police informant William O’Neal. John Kifner, “Panther Chief of Security Was Paid F.B.I. Informer; A Deposition by the Man Who Held Post When Hampton and Clark Were Slain Was Filed Last Month in Detroit,” New York Times, February 13, 1974. Citing “wiretaps on Dr. Martin Luther King Jr.” and “anonymous mailings to the head of the Black Stone Rangers to make him believe that the Black Panther Party had a contract on his life,” a Washington Post editorial said that: “A whole hierarchy within the Bureau was responsible for the most serious violations of citizens’ rights. . . . Once before, the American people were assured by the FBI that this program had been disbanded, only to discover that parts of it were still underway.” Editorial, “The Cointel Scandal,” The Washington Post, November 22, 1975. Senator Frank Church (D-IL) was the Democratic chairman of the Senate Intelligence Committee.

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MANIPULATOR UNDER MANIPULATION SHHH: MUMS Geoff K. Ward

For six seasons, muMs (manipulator under Manipulation shhh) played “Poet” on the acclaimed HBO series Oz, which followed the lives of prisoners living in the experimental unit of the fictional Oswald State Penitentiary. More recently, muMs has produced and written the play In the Last Car, which won the audience award for Best Play at the Downtown Urban Theatrical Festival (2002), and has executive produced the widely screened and award-winning short film Morning Breath, which he cowrote. The following interview was conducted by guest editor Geoff K. Ward for the Africana Criminal Justice Project. Geoff K. Ward: Where are you from? muMs: I’m from the Bronx. My earliest memories are of being on Treemont and Clinton Avenues. Then we moved to River Park Towers around 1975. From River Park Towers we moved to the upper part of the Bronx. A lot of Caribbean people lived up there in the northeast section of the Bronx near the White Plains Road area. This was around 1980 when I started junior high school. All in all, I am from the Bronx. I’ve never lived anywhere else, except now, as an adult, I live in Harlem. GW: Are you of Caribbean descent? muMs: As far as the rest of the world is concerned, my family is Caribbean, but if you talk to my family, they say we are not from the Caribbean. My family is from Bermuda. Both my mother and father are Bermudian born. They don’t consider Bermuda part of the Caribbean because it’s not in the Caribbean Sea. It’s actually in the Atlantic Ocean off the coast of South Carolina. But we all eat the same food. It’s just that Bermudian people think they are a little bit better. GW: Do you have any memories of the cultural changes in the Bronx? muMs: Hip hop culture. I am lucky. I am lucky to have grown up in that time. I saw it happen. River Park Towers was right across the street from Cedar Park, where a lot of the outside parties started. I was lucky to see a lot of that stuff. I was lucky to hear

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a lot of the very first tapes of hip hop. I was there during the transition from no hip hop to hip hop. For me, it’s just as important as any artistic revolution, or artistic explosion, in any time in history. And to have been around at that time, I think, was great; it’s definitely fueled all of my creativity. Everything that I do is fueled somehow by hip hop in my memory—like that day I got my first hip hop record—it was not just a music thing. It was like I was able to communicate. I knew there were people out there speaking the same language I was. Before hip hop, it was almost like trying to communicate in a world that doesn’t speak your language. GW: How did your sensitivity to cultural and social issues come about? muMs: My desire to address all these issues comes from a desire to see this culture expand. I think that hip hop is more than just music. I think it’s a culture. And in any culture you have good and bad. You have all of these things that make up this culture. And I don’t think that our culture is truly completed in its make-up. Through hip hop we can address social issues. We can address problems in the community regarding education and incarceration and that sense of worthlessness that causes all of the problems that are in low-income communities. I think hip hop can touch on all of that. My job is to figure out how to do it. Because hip hop is so young, it’s like trying to find a moral backbone in the culture; something that the kids after me will be able to hold on to and grow with. GW: Tell me more about your neighborhood. muMs: Growing up in the Bronx I fell in love with writing and poetry and rapping and all that stuff. But there was a time when I was just reading. I would read anything black, anything having to do with black culture. I fell in love with Baldwin and Zora Neale Hurston, the writers from the Harlem Renaissance period, W.E.B. Du Bois, and of course, Malcolm X. Through reading, what I realized was that it almost seemed as if we had peaked and gone backward and were just waiting for this whole renaissance to happen again. I figured that it was going to happen and, then, hip hop happened, and that there had to be some type of correlation. So, I moved to Harlem and when I did my mother said, “Why are you moving to Harlem?” I said, “I want to be closer to my people.” “Your people?” she said, “You don’t know those people. Those people are from the South. They are different people.” In spite of this, I moved to Harlem from the Bronx first around 1990. I stayed for about five or six years, moved back to the Bronx, and then back to Harlem. People said, “Well, the Bronx and Harlem—there’s not too much of a difference.” But in New York there’s a big difference, you know. And the people are different. The way people are in Harlem is just a little different. Whereas, up in the northeast Bronx, for the Caribbean families—middle class and lower than middle class—the next step of upward mobility would be to move up higher to Westchester, I took a step back and started noticing that people didn’t move out of Harlem. For the people on the block there was no mobility. You know what I mean? It’s generation after generation after generation in the same tenement, on the same block, in the same projects. I started to see that. The very first problem I had in Harlem was that I couldn’t open my windows. There was

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so much noise. I couldn’t get any writing done. It was funny, because I would run to the window thinking there was a fight going on and it was just people yelling and talking loudly at three o’clock in the morning. You will be angry for the first maybe two weeks and then you get used to it. You start to meet people and the people are really friendly. But what I realized—and a lot of this went into my work—is that the people, because there’s so much poverty, put on a mad grill, anger on their face to the point where you can’t even see the smile anymore, because they are frowning so much in their lives. Sometimes I would walk around in the night in Harlem and I could see that there are still a lot of heroin addicts roaming around the streets. There are also a lot of the Vietnam vets roaming the streets. There is a disproportionate amount of men. Black men just walking around unemployed all day long through Harlem. In the parks. And I would sit and watch this. It would be very interesting. But there is a lot going on in Harlem that isn’t right there up in front of your face. So, I wanted to keep the analysis going on. I’ve been on my block in Harlem for over two years now, and I said I am going to study the block, I am going to get to know everybody. Since then, I’ve taken a couple of interviews. One July 4th, a kid got killed on the block, and after it happened I intently watched the block and how people were effected. It seemed like for the first week it was like, “Oh, my God.” But after that it’s just a regular day. People were shooting craps right at his memorial. I mean, shooting dice, playing “c-low,” the numbers game. It’s still prevalent. People running numbers. People creating their own monetary system. They are figuring it’s about resiliency, but it’s also about I got to get money any way I can get it. It’s the same thing that created hip hop—that whole idea of not having anything. And nobody is giving anything so you create something. That happens every day in the hood. I sit and watch that and it goes into my writing like crazy. Only problem is, as far as writing is concerned, sometimes I get lost in the voice that I am writing in. Because, sometimes I am writing in my own voice and sometimes I am writing in the voice of somebody who comes from the hood. You get caught up in it, in the language of it. And it’s hard sometimes to analyze it and live in it at the same time. That’s one of my problems. GW: How have people responded to you wanting to study the neighborhood? muMs: I initially had the idea that people were going to be like, “Get out of here.” But you pull out a camera and the first thing they want to do is run up in front of it and say, “Yo, yo! I got mad stories to tell you, son.” Exactly. Just like that. It took me a while—almost a year—before I talked to anybody or had a real conversation about things. I was out there at two o’clock in the morning with my tripod, taking pictures out on the block. They said, “Hey, Poet, do your thing,” because they know me from the character I played on Oz. They are not as closed off as you think. They are really approachable. Especially if you really know how to approach and if you are not like somebody analyzing the caged monkey. It’s not like that. I’m here just like you. I would catch the cats on the corner—the block huggers, I call them—I am a part of that. I grew up like that—out on the block with a 40 ounce and a blunt, kicking it with your boys. After awhile, you look and time is passing. You’ve been out on the block for five hours in front of the store standing there talking. When I moved to

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Harlem I would get up and go to work in the morning and I would see them cats out on the block. I’d come home and they would still be out there. I’d go out to go to the party and they’d still be there. I’d come home from the party at three, four in the morning and they’d be there. What are you doing on the block all day? I haven’t had that conversation with them yet. I haven’t been, like, “What do you guys do out here?” Because, for them, it might seem like, “Who the hell do you think you are?” When it was more just the analytical-type of thing: What do you think about? What do you think about the whole 9/11 thing? What do you think about the war in Iraq? They still have a view. And what I came to realize was that, if they voted, a lot of them would vote Republican. “Yo, Bush is doing it. He’s hardcore. He’s gangster.” And it was interesting. I mean, it wouldn’t be as Democratic as you think. It’s eye for an eye out there. GW: How did you get your break as a writer and performer? muMs: That’s a story. I took a chance. I took a serious chance. My mother sent me to an all-boys Catholic junior high school and high school up in the Bronx. When I graduated, I was about to go to West Point. I had my Congressional nomination and I was going to do that. They wanted me to play football. But I decided not to go. There was a funny reason: It was because of a girl. I hadn’t seen girls in so long that I needed to go some place where there were some girls. So, I ended up going down South to Norfolk State University. But Virginia was the wrong place to be in the mideighties. That’s when all the drug dealers up here realized that they could make money down South. So lot of drug dealers went down there at the same time. There was fighting over territory, people got killed. I left out after three semesters and I came back up here. I started working a job at a hospital and my hobby was going to my friend’s house in Harlem where we would make beats. We had our rap group. But that never worked out because we didn’t put as much effort into it as we should have. But then I started performing alone. A friend of mine told me about the Nuyorican Poet’s Cafe. I went down there and started performing, but not even performing as much as reading some stuff that I had written so that other people could hear it and give me feedback. After six years of performing without trying to get a record deal or going on auditions, I had come to the realization that I was going to be working at the hospital and that I was eventually going to go to school for nursing. Performing was my hobby. But I lucked out. I performed five or six years and one night Darnell Martin, who directed I Like It Like That, was in the crowd. In 1996, she saw me performing a piece that I had written called “Kidnap the President’s Wife Without a Plan” and she thought it was hilarious and witty. And she said to come and audition for this TV show. Turns out she was directing the pilot episode for Oz. I was horrible in the audition. But I did my poem in the audition and the executive producer liked it and hired me. He said, “We will call you ‘Poet’ and you will do your thing.” Later, I found out that he came to the Nuyorican one night and saw me perform, and snuck out without me even knowing. So, I have the story I can tell on Jay Leno, if it all ever gets to that point. It was that dramatic. It was a fantasy, as if I almost got put on that show Oz. But six years later, here I am. The show is done and

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I’ve moved back into my art. I am a better actor for it. I am a better poet for it. A better writer, period. A better person. GW: Did you ever do the poem on the show? muMs: I did that poem on Oz in the first season. They would come and says, “muMs, do a poem—but it’s got to be quick. You got to make it quick.” And this poem is three and a half minutes long. But they actually let me do the entire poem and aired the whole thing. GW: Where did the title of the poem come from? muMs: I wrote that poem because I had heard Nas use it on one of my favorite albums called Breaking Atoms [by the rap group Main Source] on a cut called “Live at the Barbecue.” This was the very first time Nas had ever been on wax. He said, “kidnap the president’s wife without a plan and hangin’ niggaz like the Ku Klux Klan.” And I thought it was witty. It was a strong statement, especially back when I heard it. That was the early nineties and where I grew up in the Bronx—in the projects—a woman woke up one Sunday morning, dressed her three children for church, fed them breakfast, took them up to the roof and then tossed them off. Then she jumped. I needed to write about that somehow. And when I had heard the Nas track it was just interesting. What would it be like if the president’s wife, Hillary Clinton— the woman that I was talking about, at the moment—came to the hood, and not in her limousine, but truly came to the hood and had to stay in the projects for a while and see what it is to live in the hood under the stresses that people live under. How would she fare? That’s what the poem is about. The poem resonated. People were really feeling like that. Especially prison members. It really worked well on the show. GW: What do you suppose was the audience’s experience with this show? muMs: Personally, I learned a lot about being in the jail system by being on the show. Of course, the show was dramatized. It was a show about the disenfranchised. They can’t vote anymore. But you are in jail and counted as part of the population. You are counted towards electoral votes. So, if you get arrested in New York and you go to jail in Pennsylvania you are counted towards Pennsylvania’s electoral votes. But you can’t even vote. Crazy. To me, that is really interesting and it goes into the poetry and into the writing. My thing is to keep people from going to jail through the writing. The best thing is to be an example. The kids on the block always ask, “Yo, muMs, how I can get on?” And I tell them how I got on and, I say, “You rhyme, right? Well, since you rhyme you know what that means: you are a writer.” I let them know that they are writers. You could take that and go in all these different places with it. You can’t limit yourself. I also talk to them about suppressing anger. Analyzing where all the anger is coming from. Where is the loss of control of one’s emotions? Why? It’s basically getting a harness on that. That’s where it is. Because a lot of things in Oz were about that—people in jail because they couldn’t control themselves. How do we find control? GW: You feel people were drawn to this theme in Oz? muMs: Yeah. People love jails. They love the whole jail mentality. Because the jail mentality is basic. It’s that innate type of thing. That’s an instinct. You are going back to the basic instinct. And it’s basically survival. As soon as you get in jail, the very first

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thing you do is look for people who look like you. And you go hang out with them. Hopefully they protect you. We were talking once before about the gang mentality in the seventies that created hip hop. The gang mentality was right after what happened in the sixties with civil rights. It was almost like a war that we had lost. When Malcolm died and Martin died these gangs formed because people felt they needed something to cling to. Whether it be the Black Spades or the Panthers or the Latin Kings. These organizations formed and they were gangs. And the gangs would fight each other. You get with somebody who looks like you for protection. You need to go against somebody: that’s just basic. That’s instinctual. That goes back to cavemen. You got to fight somebody. What was beautiful about hip hop and what [Afrika] Bambaataa realized was we could turn all of this competitiveness into a positive thing. Let’s compete with break dancing. Let’s compete with [emceeing] as rappers. Let’s compete with graffiti. Let’s compete with some DJ competitions. Brilliant. If you want to compare something you can compare Malcolm to Bambaataa. Where Malcolm left off, that’s where Bambaataa almost seemed like he took over with his ideology and implementing the competitiveness of the gang mentality, which created that competitive structure of hip hop. A lot of people would hate on me for saying that. In the cities we are fighting over the shit that we don’t even own. That’s what I remember about the gangs back in the seventies when I lived in River Park Towers. I remember how one of them stole my brother’s bike out in front of our house one day—because my brother was resistant to joining the gangs. My brother is forty-five years old right now. You never know. He might not even be alive now if he would’ve joined those gangs. It was the Sabbath Skulls and the Savage Nomads. The Bronx was crazy back then. It’s that gang mentality. That’s the appeal about jail. You go inside jail it’s immediately a gang mentality. It goes back to a basic survival instinct. And that’s what people jumped on about this show. There is no mask on in jail. GW: How did the public react to the show and to you post-Oz? muMs: I think it pushed people into thinking in new ways about other people. They talk about the appeal—my appeal on this show was twofold. One was the intelligent monkey. I call it the intelligent monkey theory. If you dress a certain way and look a certain way then people automatically assume certain things about you. Let’s say I wear baggy jeans and Timberland boots all the time. I don’t wear suits ever. Always talk slang and always have a frown on my face. That one moment that I say something intelligent and meaningful is when they go, “Ah, wow. He is so bright.” It’s almost like a game that you play with the people. On this show, I was this thug-looking individual. But yet and still, I was doing poetry. I graduated from high school and I got my GED on that show. They portrayed me as an intelligent person on the show. On the show, my sister was a doctor. They showed my mother on the show. It just seemed like I had taken the wrong turn, at some point. On the other end of that, the thugs respected me. I was getting that respect from academia, but still a thug. Thuglike, thugesque. No true thug wants to be a thug. You know what I mean? He doesn’t really want to be a thug. He is content with looking like he is content. Giving the appearance of contentment in being a thug. But no true thug wants to risk his life out there for real. He wants to be intelligent, he wants to read a book. I

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am lucky because I fit right there in the middle. And I’ve always been one to touch on different aspects of culture. My ideas for hip hop and this culture that is thuglike is to get the thug to come check out an opera. Let’s see an operatic version of a Biggie Smalls song. You know what I mean? Let’s blend these cultures and create newness. So that’s my appeal and that was the appeal of the show beyond its just basic instinctual thing. The characters were interesting. Oz changed TV, in general. If you notice, before Oz, every thing on TV was black and white. This is the good guy, this the bad guy. The good guy wears white, the bad guy wears black. And it’s been like that for years and years on TV and in movies. As soon as you walk into the theater you know who the good guy is, and you know who the bad guy is. Oz changed that by giving you a TV show about bad guys. Everybody initially is bad. But today this guy is good. And today this guy is better than this guy: Everybody was in this gray area. I remember there was one episode where one of the older guys on the show’s grandson had leukemia. He took up a collection in the jail for his grandson to go to Great Adventure or something like that. And you see some of the hardcore killers on the show look at him and give him a wad of cash. Simon Adebisi was one of the African drug dealers who killed people and put ground-up glass in people’s food and raped people. And we saw this hardcore individual give him the money. And you saw that this guy had a heart. After our TV show, you started to see more TV shows that went into these gray areas regarding characters. If you think about people, in general, that’s how they are. I mean, it’s a weird thing. And it’s one of the things that you only will learn in the hood. A cat comes up to you and mugs you on a train. First thing you do is look him in the eye and see where he really is. If he is wild-eyed and glassy-eyed, that means he is probably on drugs. That means step away from him. But his movements aren’t uniform and you probably can swing on him and knock him out. If the guy is serious and he is just hurting for money, you go, like, “Dude, you really going to rob me? I am just a paycheck away from where you are at.” You could literally talk because of that gray area in people. So that’s what the show tapped into. GW: I agree that the show gave a complicated and human portrait of people in prison, which is needed to counter all the demonizing that goes on. But will this facilitate meaningful change? muMs: There are 2.2 million people in prison. There are more black people, more black men, in prison than there are in college. We have to educate the system. The system needs to be educated about people, about where people are at today. We are still working on a 200-year-old system. Every engine needs an overhaul, at some point. Needs to be lubricated. And we have to bring the president’s wife into the hood to understand what’s going on in the hood. Like the Rockefeller laws: People are going to jail for life for selling weed. That just doesn’t make any sense to me— President Clinton smoked. The system needs to be educated. On the other hand, people need to be educated about their rights. If you don’t know anything about the system, then, of course, you are going to get railroaded. Because that judge doesn’t look at you as a human being. That judge looks at you as a problem in the society. Doesn’t know anything about you. Doesn’t know about that gray area within you. A lot of people deal with facts and statistics and numbers and stuff. I am dealing with the everyday cat that’s going to go to jail. I see the problem that affects us all right

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there, when he steps right there before the judge. It’s almost as basic as putting on a tie. Speak clearly. Tell the judge from your heart what’s on your mind and connect. We are not connecting. The system isn’t connecting to the people. Therefore it put some people in the system and they go through it. The one true statistic is the fact that there are more people in prison in this country than in any other country in the world. Canada is right there and nothing is happening up there. GW: Why do you think that is? muMs: The very first thing that we do is put people in prison for the littlest thing. It’s also big business. You pull the business aspect out of it and there won’t be people in prison. This is a huge business. You can pay somebody $2 a day to make whatever. GW: Let’s talk more about hip hop and its potential. What do you see as the social impact of hip hop culture? muMs: Mass social and economic change in society through the hip hop community is inevitable: Plain and simple. Hip hop touches too many people. And when you have all of these people on the same wavelength, the same structure, it’s inevitable. I think the problem is we are all looking for it to happen when it needs to happen just how hip hop happened: gradually and without warning. You know what I mean? It’s inevitable because of the fact that they have break dancing in Japan. They have break dancing in the furthest reaches of Russia. They had break dancing, from what I had heard, while the cameras were rolling in Iraq to protest the war, “Down with America, down with America”—the young kids—“down with America.” But when the cameras were turned off, they went back home and watched Eminem. It’s such a rebellious art form that it has captured all of the youth, all over the world. From Brazilian hip hop, all kinds of South American hip hop, Cuban hip hop, Russian hip hop, Japanese hip hop, Chinese hip hop, Australian hip hop, it’s all over the world. They just have to wake up, and we have to wake up, and realize the power. If the hip hop world uniformly said we don’t want a war, there would not have been a war. GW: Some feel hip hop has become primarily a commercial force, and not a social movement. muMs: I’ve been thinking about this for a while and I’m going to say something that’s going to be weird. I don’t necessarily think that’s a bad thing. It’s not a bad thing. Because it’s still spreading that message, spreading that hip hop, that hip hop plague, if you will. And it’s getting the kids and the politicians out here. Their grandkids. Because they are all so old. But they’ve got their children. We literally have their children. There is no other way to put it. Right now your number one pop icon is Oprah Winfrey. And we are calling for Oprah Winfrey for president. It’s almost to where our politics is changing. The country’s politics is changing because now it’s not the person who is driven by issues or is following a life of politics. It’s a popularity contest. Who are people going to like the most? And, if you bring it to that point of view, then Puffy’s in the running. Eminem is in the running. Jay-Z is in the running. All you have to do is change the mind of a Puffy. You change the mind of a Jay-Z. You change the mind of an Eminem. And all the people that follow him, their minds, subsequently, are changed. It’s not necessarily a bad thing. It’s what it is. I equate it to

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hip hop being a—how old is hip hop—from 1979 to 2004; it’s a twenty-five-year-old child. Twenty-five-year-olds are hardheaded. Think they know everything. You know? And they get hit with rude awakenings. I’m not worried. GW: We’ve been in this phase of activism for a few years. What do you think about Russell Simmons’s recent moves into social activism? muMs: What’s brilliant about hip hop is that it’s such a new culture that it’s rapidly turning over. And technology is flipping it. We are in the throes of a huge technological revolution. So, things are going to flip. And Russell Simmons went up to Albany and had that meeting with Governor Pataki. You know how many people who’ve been dealing with the Rockefeller laws and have been trying to have a sit down with the governor? Russell got railroaded, knocked down and showed his butt. But he’ll get back up. I believe he will get back up. He’ll understand the game truly for what it is and walk back up in there next time with a suit and tie on playing the game the way they play it. If you think that hip hop is a boy’s game of egos, then the politics game is even much more so. You have to come the way they come. You have to play golf with them and do the things the way they do, in order to be heard and get your deals through. But he’s young. That first, dare I say, black, true sense of self might be that thuggism: “I don’t care what anybody says about me. I’m going to talk like this. I’m going to dress like this.” That’s the beginning. Then he is going to say, “I should dress like this.” GW: How will we get to a point of effecting change? muMs: Well, in order to effect change the rank and file of hip hop are going to have to start seeing things differently. They will have to start caring about issues. Most of them don’t care about issues. You can’t really blame hip hop, but at the same time, you can. Hip hop has to take responsibility for itself and for its own power. A lot of the major people in hip hop are starting to realize the power that they wield—because only recently have you started to see these hip hop icons come about. People like Jay-Z, Puffy, and Russell Simmons have been visible in hip hop for ten years or more at a steady level. They haven’t just shot up and then down. We are only starting to see that now, in the last few years. The rank and file are going to have to care about something other than partying. The average cat on the block doesn’t really know what’s going on. I read an article a long time ago in Newsday about this kid who had evidently shot another kid deep in Brooklyn. The kid who did the shooting was fourteen or fifteen years old. When they went to go interview the kid they asked him who the president was and he didn’t know who the president was. Then they asked him, “Do you know who Michael Jordan is?” He knew who Michael Jordan was, but he didn’t know what basketball team he played for. He had never been outside of Brooklyn. He did not know that the Yankees played in New York. And there are a lot of people like that growing up in the Bronx. I knew a lot of people in the Bronx who never left the Bronx. Never been on a plane. These are the people that consume hip hop and that are affected by the Rockefeller laws. And these are the rank and file, the true rank and file. Chuck D said that hip hop is the ghetto CNN. It’s supposed to be the ghetto CNN. It should be the ghetto CNN. It should be the CNN for those types of people.

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We’ve gone away from that. Once hip hop comes back to that, the message of the music will start to broaden itself, the ideas within it will start to broaden, and the ideas in the people’s heads will broaden. They will get behind somebody like Russell Simmons and say, “Yes, we need to repeal these laws.” They had that rally out at city hall.1 Russell Simmons, Puffy, and Jay-Z were all there. The kids took the day off of school, but the only reason they came out was to see Puffy and Jay-Z perform. They weren’t there for anything else but the music. I am not saying that the music is bad, I’m saying that we have to take responsibility for the images that go out. We have to sit back and say, “We are powerful. These kids really are listening. And if we said something with any substance they would soak it up. We have the power to make better people with this music.” We just have to understand how powerful this medium is. GW: Could you talk about what you are working on at the present time? muMs: I am doing research on the three separate periods black people in this country have experienced since the Middle Passage: slavery, the Jim Crow era, and now the civil rights era. I don’t know if it’s going to be a series of poems or a book. But I need to sum up how we got here. How did we get from there to here. I am writing a book right now as a Web log. But I haven’t posted it to my Web site yet. I am hoping that it comes out as a book. It’s an embellished log with fiction mixed in. I am also writing about the block and the people I see on the block. I came to the realization that there are at least two distinct generations in hip hop right now—and that’s interesting to me. You have people that grew up on hip hop who are my age—thirty plus—or between twenty-five and forty, and you have those who are twenty-five and under. We have distinct tastes. We are not the same people, and the music industry doesn’t see that yet. GW: Your story illustrates the complexity of hip hop culture and its imagined community. muMs: Very gray. All kinds of colors. A whole entire rainbow. I am starting to dislike the term hip hop because of how people react to it. Because of the commercial world. It’s urban. But it’s that thing that was created in 1979 that I responded to. So we will have to do like we did with the term “nigger” and change it. KIDNAP THE PRESIDENT’S WIFE WITHOUT A PLAN Yeah, I got a plan. It’s etched with a knife in the center of my hand So I guess I’m gonna have to keep my fist clenched Walk around D.C. in the rain ’til my wares is drenched Wait for that mothafucka to take out the garbage and do a press conference about what great shape this country’s in and when them welfare cuts is gonna begin And when he pats his dog and kiss his wife goodbye, that’s when I move in I throw that silly ho in a headlock I muffle her grill so her screams stop I whisper to her, “Your man ain’t here to protect you, baby. He gone.” I dial up my nigga Old North Tell him, “Meet me with the caddy on the white lawn.”

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I tossed her in the backseat I covered her head with a black sheet Put the steel to her grill piece Be like, “If you don’t shut up, I’m gonna let two shots in your dome piece.” Watch her have fits If she don’t understand, I’m gonna give the quick lesson in ebonics “I’m gonna shoot you, baby.” I take her to my hideout in the low-income house down the street. I replace her Joan & Davids with Purple Reeboks on her feet. I give her four hungry kids, no job, no ambition, no family support, and a last welfare check. I gave her crappy-ass Medicaid and an ill type of growth growing out the side of her neck. I tell her, “Fend for yourself, keep you and them shorties in proper health.” And after sufficient time on that hype I introduce her to the crackpipe. Yeah I let her feel its soothing effects as she tries to forget about the absence of them checks. I make her sell her jewels for it I make her pay her dues for it And then I’ll come to her late at night And I’ll be like, “Yo, everything ain’t gonna be alright, you ain’t gonna be Able to go quietly in that good night. Peace ain’t come ‘til your death be done.” And then I’ll lead her up to the roof Ha And I’ll show her all the shit she don’t own I lead her over the edge And leave her there all alone.

NOTES 1. On June 4, 2002, Russell Simmons and the Hip Hop Summit Action Network organized a teach-in for New York City public school children at City Hall.

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THE LONGEST HOUR Craig Davis

I like to move forward continuously when I ride my bicycle, so I usually eschew the inconvenience of stopping at red lights. In four years on the road as a messenger I’d been written up for perpetual motion maybe eight or nine times. Cops will pull you over, pacing you in a squad car as you pedal, intoning orders for all to hear; sometimes you run, most of the time you have to take the ticket. It’s a tribal thing out there, though, because you can depend on other messengers to tell you where the sweeps and gauntlets are, if any officers are lurking around a corner trying to fill their quota, or you just rely on your radar. You can’t run from them when they’re on bikes though, not because they can catch you but because they have radios to call more constables. I’m at the end of the subway platform with my running partner on a Friday night. We’re ready to hit Manhattan for some live sounds. My brew’s in my pocket, but I’m taking an occasional, clandestine sip. His pint is out in plain sight, but that’s why we’re at the end of the platform. The officer gets close to us on the sneak. In my head I admire his furtiveness. He tells us to garbage the beers and telephone checks our identification. I get the matching bracelets for a warrant from tickets I accumulated seven years ago and become one of those statistics, entering the New York City criminal justice system. If your arresting officer has a demeanor that meshes well with yours or he understands you as nonthreatening, your handcuffs won’t bite too hard. My officer was the straight professional, even-keeled, by the book, generic Joe Cop. Never looked me in the eye, gave clear instructions, and called me “sir” and “Mr. Davis.” But the cuffs, they stay with you until you’ve been printed, photographed, and processed. You do a lot of sitting or standing and squirming, asking for the cuffs to at least be moved to the front of your body, switching from one uncomfortable position to one that in due time will be just as uncomfortable. “Due time.” More like overdue when it comes to that wait for processing. It could take hours, and despite how merciful your arresting officer might have been in adorning you with the silver, the cuffs tend to creep tighter with time. And that’s primarily what you lose: time. There’s a lot of waiting. One, because the systems’ process is archaic, and two,

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because there are so many people in it for silly reasons; unlawful yes, but minor. The third is probably connected to the unwritten police rule of psychological manipulation: “Make them wait in ignorance, and we’ll see what they know.” Three hours passed from the time of my arrest to finally getting into a holding pen and losing the cuffs. The first cell was about the length of a bus and as wide as two. A narrow bench covered the walls all the way around. There was one payphone and one toilet that hadn’t seen clean since it had seen new. The pen was packed with cats of all kinds but mostly young black and brown, in for open beer bottles, marijuana, or coke possession. There were a couple of Asian dudes inside for trying to buy sex, others there for moving violations and domestic violence, which isn’t always physical. Oh yeah, if there’s an order of protection on file and her mother dies and he sends her flowers of condolence, he’s breaking the law. The things you learn in there. In the holding pen . . . Sometimes a guy talks too loud or to himself or to a shadow or simply snores. There are bodies all over the floor, guys sleeping because they know they’re not going anywhere anytime soon. But everybody’s innocent: “That weed wasn’t even mine!” “I didn’t even have it on me! It was upstairs but you know, I been on that corner for five years, so you know, I guess they figured. . . . ” “They said it went down at 8 a.m., but I was in bed until 10. . . . ”

Eighteen to fifty or sixty years old, but mostly eighteen to twenty-seven, all with different variations of the same few looks on their faces: What am I doing here? If I’d waited a half second that cop wouldn’ta seen me! Man I’m so stupid! I’m laughing at myself! Damn . . . this is it! He said one more time and I’m on the island for a few! That’s it! I fucked up!

The holding pen is a networking convention of sorts. Guys make plans for cross pollination of business when they get out. Say an addict bumps into a young pusher; the possibilities are endless. But the characters, oh the characters! The older brother with the slow 1970s uptown junkie lilt, baby afro on the sides with locks on top down to his waist. He was out on bail for crack possession. In there that night for some weed. Forty-five years old: Omar. Man this ain’t no place for a man . . . see how they do you? Take away your freedom . . . yeah man I thought I seen you before, I ride bikes too.

The young smooth fast talker with the gabgift, good-looking, slim, light-skinned, midlevel drug dealer. Twenty-six years old: Dane.

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Yo this ain’t nothin’. What’s fucked up is my son right here was out on the corner with me but he just got home from work! He got a pay stub and everything! He don’t even smoke son! As long as he gets out it’s all love for me daddyo, cause see I’m an entrepreneur, I gots workers and everything. When I get knocked, c’mooon! You know I ain’t got nothing on me, all the works is upstairs, but that’s been my corner for a nice piece of time. I’m a fixture, so. . . .

Dane never stopped talking and cracking jokes with his boys. Of course I wasn’t going to sleep so I listened to him chatter and patter for the entire time I was in that first pen, which was about ten hours. You have to stay awake in case your name gets called or to make sure a roach doesn’t crawl on you or to ensure your pocket not being picked by the 6’4” lanky, but thick in the shoulders, street worker for some local dealer in East New York, slow-speaking and slow-moving, eyes always in motion. Looked strong and especially quick with his hands; ready to make whatever move whenever. Nineteen years old: Thump. He picked the pocket of our next character almost as an audition, then politicked with Dane over the wallet’s contents and a possible position with him in the future. The thin, strung-out-looking white boy, already on methadone, dilated pupils, slurred speech, erratic movement. Unhealthily pale skinned with buzz-cut blond hair. Twenty years old. They dubbed him: Stan. Of course I’m an Eminem fan but I don’t fuck with that ecstasy or ’shrooms anymore, nah I like real dope.

The big young boy, 6’3” about 235 pounds, in for robbery, told me how he was oversleeping for school when it all happened and how he wants to get out of NYC, out of Brooklyn. Seventeen years old: Virgil Franklin. Yo I play football, basketball, and baseball. I get this scholarship, I’m good yo. I gotta get outta here.

Thump asked Stan, “How we know you ain’t no inside cop man?” Stan replied, “Yo you wanna see proof?” He pulled up his sleeve and showed his track marks. He then proceeded to talk with Dane in regards to scoring after their release. Dane was excited because Stan was from the lower east side of Manhattan; that’s a whole new source of clientele. Before Stan had us all witness his needle scars and before he had his conference with Dane he found space on the floor to nap (or pass out.) During his sleep Thump made his move on his pockets. He slid the wallet under Stan’s hip as he sat up upon awakening. Stan did a late security check, patting himself down until he heard Thump say, “Yo, its right there, musta fell out while you were sleepin’ duke.” They moved us all to the identical pen next door so they could mop the one we were in. We were standing about 100 men deep, and more drama ensues. One young cat started calling another dude a punk, a pussy, a bitch. He responded with loud wolfing, “Why you talkin’ for?! Just come on right here!!! C’mon!!!” His voice got high-pitched and jittery from nervous adrenaline. He was ready to fight, but he didn’t really want to.

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I guess being alone in a crowded cell and not knowing how many you’re up against can be daunting to say the least. It set off between the two but a big older dude got between them. He literally carried the lonely guy by one arm toward the front to the bars, where the corrections officers could get a hold of him and get him out of there. The first cat’s partner explained: “We was comin’ home from the movies, bent. This nigga pulls out a 25 and tries to rob us. We buggin ’cause we seen popo sittin’ right up the block! When he pulls out the burner, they just roll up, lights flashin’ and arrest alla us! But word, my man shouldn’ta said nothin and we shoulda just snuffed him.” With that mischievous timbre in his tone Dane continued to let it be known that his opinion would always matter that night, “Yeah, word ’cause we woulda shielded the gate and y’all coulda did y’all thing daddyo!” But Big Man who broke it up disagreed with a loud passion that hushed all tough talk, “Nah fuck that! ’Cause had it gotten foolish in here the C.O.s [corrections officers] woulda said we was rioting and locked this whole pen down and none of us woulda seen daylight ’til Monday!” As the truth boomed down from six feet seven inches high and about fifty years of life experience, silence settled on the room until Dane cracked a joke, “Well ya man wouldn’ta seen daylight for a lot longer than that with his eyes all lumped up!” Laughter. They moved us back to the original cell, which then reeked of dirty mop water, and I wondered who was going to want to sleep on the floor. Of course there were a number of candidates. One of Dane’s boys searched the floor between bodies for butts with which to build cigarettes. Dane had smuggled in a nickel bag of weed. I sat and watched him spread it out and sell enough to get $20 and still have enough for two little spliffs for himself. Whether a cigarette or a joint, cats gravitated toward the smoke to bum a drag. Guys are constantly talking about their cases, mulling over and tossing around their theories on what the judge will decree. It’s amazing how many people have these small yet specialized bodies of law knowledge floating in their heads. Experience breeds a strange expertise. I’d been in this theater of the absurd and sad since 1:00 Saturday morning. At about 10:30 or 11:00 AM, fellas started waking up, bitching and moaning, “When are they gonna serve lunch?” Omar says, “Fuck lunch! When am I gonna get moved upstairs? See a lawyer, a judge!? Somethin’!” I watched Thump intimidate a dude who’d been making love to the phone for quite some time. Phoneman talked a good one but dialed up a bad message from Thump. Phonema: “Yo man, I’m on the phone! Chill!” Thump: “I’m just sayin’ you been on that shit for like twenty, thirty minutes! Its mad niggas in here need that shit!”

Phoneman said something I couldn’t hear that didn’t sit too well with Thump, whose voice never got loud and tone never changed, “Oh word? Nah, listen, be cool. I don’t want you to be scared, but you better stay up here near the gate where the C.O.s can

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see you ’cause you step to the rear I won’t be responsible. I’ll be beating that ass but I won’t be responsible.” Phoneman stayed up front while the C.O.s watched “Casino” with DeNiro and Pesci. At about noon my name was called along with ten others. Among them were Omar and Big Man. The C.O.s passed out Kool-Aid and two bologna and cheese sandwiches, which I gave away. I didn’t want anything from inside the system inside my system. The cell upstairs, which held the eleven of us, was about 4’ x 15’, with one payphone, one toilet, and one long wall to wall bench. A short Latin cat found some space on the floor and slept on his back with his hands in his pockets, as if he was standing. I was with him for the rest of my stay, and that’s all he did for the next two cells until he got called to see a lawyer. Omar sat right next to me, and he and I clicked; once a bike messenger, always a bike messenger. He constantly talked about the black man’s condition and how “we shouldn’t be in here for this bullshit.” He liked to ask people what they were in for and then analyze what the results would be for them by days’ end. During a long stretch of silence and individual introspection I watched him get on his knees and pray to God to let him go home today and he’d “never fuck with that shit again.” They found the contraband in the handlebars of his bicycle. The Big Man was real cool. He was 6’7”, about 270 pounds, an easy smile and an easy attitude as long as no one acted like a knucklehead around him. He was driving with his brother. They’d just copped two bags of weed, drove eight blocks, and then got pulled over. “Cops said ‘yeah, you didn’t get anything at that first spot but we saw you score at the second.’ Man! I told my brother to give me all the shit ’cause he ain’t never been to jail. Me, I ain’t been in this system in over ten years and it was for the same thing then! I don’t drink, smoke cigarettes, or do any of that other shit! Ain’t this a bitch!?” It got tough for him around 4 p.m. He’d been inside for almost twenty-four hours and needed his medication. High blood pressure. He started pacing, sweating, and grabbing the bars to steady himself as he fought the shakes. His wife was right upstairs with his medication. He was vexed and agitated because “This system’s so full of it! My wife is right upstairs with my meds, but they won’t let her come downstairs to give it to me because they don’t allow drugs in the cells! [Tell that to Dane!] I’d have to go to the hospital! Alla way to the hospital when what I need is right upstairs! And I don’t want that cause that might push my paper back and who knows where it’ll be when I get back here!” So he calmed down and sucked it up; sat so very still with his eyes closed. I was in that cell from about noon to 7 p.m., no food and no water. Omar said he was dehydrated. I could imagine his health problems with all the drugs he’d done over the years. Every time a C.O. walked by he clearly voiced, with humility dripping off of his words, “Officer, can I have some water please?” It was always accompanied with one of the following: “You put us in a cell with no water!” “I’m dehydrated and sick, just a little water would help!”

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I listened to that plea at least two dozen times over the course of two hours. Finally someone stopped, opened the gate and let us out one by one with a paper cup. We were allowed to go to the wash basin right in front of our cell and get some water. I’d seen numerous officers go there to wash their hands, rinse a coffee mug, or get some water before we received the privilege. Being a corrections officer can’t possibly be easy. The bitch in every woman sits on their surface when they’re on the job because not one of them was nice. They’re good at ignoring you. They’re good at giving off the smelliest attitude. It’s like we’re a crew of corny guys at a club and the women are giving us no attention. I understand why, I mean they could act nice to one inmate and the next four would be idiots that need to witness sisters’ method acting technique. Character: hardass. That back and forth switching of disposition would be psychologically too difficult to maintain. Thus the bitchface. The most disheartening thing I saw all night . . . hmmm. I say all night because when I arrived it was night but there are no windows, just harsh or inefficient overhead light, so it was always evening in my head. I avoided looking at my watch. It all seemed like the dreariest, longest hour. But again, the most disheartening and disappointing vision was the two fifteen year olds handcuffed together to a chair outside the cell when I was with the ten. They were never penned up with the guys I was with, I thought because of age, but it was because of the seriousness of their crime. Armed robbery; $48 and a coat. These Brownsville youngsters laughed and joked, but they weren’t going to be running the streets for a while. The leader of the two, he’d be back more than once. Because of his nonhumble, constantly grinning, “aww this is all bullshit” attitude, he got berated by one of those full-on bitch-mode female C.O.s She talked to him like the child he was. But there was no compassion, sympathy, or tone of dissuasion in her voice, just the hard predictable facts of his next five years on earth. Officer Cleo Nostramama didn’t foresee freedom or life for the young one. After her speech he smiled less, and the female C.O.s were no less pissed off. On that floor there were six other minicells, and sometimes guys were moved from one to another. There never seemed to be any order to the name calling. We, the eleven, were called up there before everyone downstairs, yet I saw guys who came in after me get taken upstairs to see lawyers. When Omar questioned this, the C.O. realized she’d made a mistake. She moved us to the minicells, where some of us got called almost immediately. I wasn’t one of those, and so a few more hours were tacked on to my wait. When my name was eventually called, out came the bracelets again, but this time I was chained to a line of about twenty men I’d never seen before. They took us up two flights, and I saw familiar faces headed where I’d just left. They stopped us in a hallway because the cell upstairs was still crowded and the group that was upstairs had to come down first to see attorneys. The hallway we were standing in was adjacent to the courtroom and a cell that had four visiting boxes so you could talk to a court-appointed lawyer in private. They sent us upstairs anyway. There was a big Deer Park water bottle, not nearly enough paper cups, and nowhere to sit or lay down on account of all of the bodies already littering the floor. There was no phone and a lot of cats looking around, and some trying to look hard. Most were just looking inside themselves for smart answers to dumb questions, and everybody’s tired. I’d

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been in for about sixteen hours now, and there were dudes that had been there for over twenty-four. There was constant talk about the “Twenty-four hour law,” “No it’s seventy-two yo!” “Nah, if you ain’t been arraigned in twenty-four they gotta dismiss you or you can sue!” “Son I’m tellin’ you.” Man even the roaches were tired of us; little mini-C.O.s whose presence we jump at, who never bring good news, and who are usually just walking by. They eventually sent us downstairs to the cell with the visiting booths in the rear, right next to the courtroom. Eighty to a hundred guys standing as if we’re on a rush hour subway. It’s that thick. And the Middle Passage was worse. Do I have to tell you about the smell? I mean some of these cats were real vagrants, one of whom kept farting; we begged a C.O. for some Lysol. She complied only because the funk was creeping between the cell bars. I ended up being reunited with Dane and his boys, Big Man, Omar, and Virgil. It’s the home stretch. Everyone was hoping to see a lawyer and then the judge before 10 p.m. That’s when Saturday night court adjourns. Seeing the court-appointed mouthpiece is an emotional experience. You’ve got all these hopefuls out there in the bodysea commiserating about their chances and what they think or were told their consequences will be. The lawyer enters from the other side and calls a name, and everyone within earshot repeats it. The quicker one gets in, the quicker he gets out, giving the rest some assurance of meeting the deadline. You slide in, close the door, and face the bars between you and counsel. Your back is to the rest of the inmates. The booths are like “Calvin and Hobbes” transmogrifiers: You’re a different person when you come out. Guys return to the crowd pensive because they’re going home but have other circumstances to contend with. Some are smiling big because their case is being dismissed or they’re getting probation. Others are dour and tight because they realize they’ll be a foreigner to fresh air and sunshine for a while longer. Four others and I got summoned to the hallway to see the judge. Then the officer realized we hadn’t seen a lawyer yet, so it was back in the box. One cat called it “Christmas with beautifully wrapped gifts, but they’re all empty.” After an experience like that, then watching others get called before you, worry sets in: “Did they lose my paperwork?” Dane had been trying to recruit Big Young Boy Virgil Carter since the first cell, plying him with smoke and smooth talk. The word was that Virgil had stuck up seven people. “How I’ma do that when my moms woke me late for school at 10 and the robberies went down at 8? I can’t be in NY no more! I got sports skills! Damn just a scholarship . . . and I know who did them robberies!” When the C.O. passed by and said, “Virgil Franklin! Your father’s out there!” he panicked. He seemed like a regular seventeen year old, not trying to be anything else, not a bully. He was a little uptight but funny. When the news of his father’s presence hit him, then he was scared. “Son, you don’t understand! You think I’m big? My pops ain’t my height but he’s wider and about sixty to seventy pounds heavier! That man bench 450, 500 pounds! He a minister, he don’t need to be around here! I don’t want him havin’ no flashbacks! He been in jail more than alla us in here combined! He hit me in the chest once? That’s it son!” Virgil went to see the judge, but he returned from the courtroom being guided back downstairs.

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The criminal justice system is problematic for the regular guy who gets caught committing those minor “quality of life” violations like smoking a joint, having an open beer container, or urinating in public. I can understand a summons or a ticket, but a night in jail? I guess that means “don’t do that shit anymore!” Or don’t get caught. In the hours that I spent there, over 500 people went through central booking. The scary part, though, was when I stood before the judge. I saw the original tickets written from 1993 and 1997. They were for drunken disorderly, public nuisance, and trespassing for a Craig Davis who gave his address as 55 West 152 Street. Anytime I’ve ever received a summons I’ve always given my correct address, and I’ve never lived in Manhattan or been arrested for those offenses. I thank God that guy didn’t get picked up for something worse than that, or I’d be the one claiming innocence and eventually forgetting what daylight looks and feels like.

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“FROM OBJECT TO SUBJECT”: JAZZ HAYDEN Russell Rickford

Joseph “Jazz” Hayden is director of the NYC Unlock The Block: Release the Vote Campaign, a coalition of organizations that is seeking to extend the right to vote to individuals with felony convictions. Mr. Hayden is the lead plaintiff in the class action lawsuit challenging felon disenfranchisement in New York State, Hayden v. Pataki, which he filed on his own behalf and that is now being represented by the NAACP Legal Defense Fund, the Community Service Society, and the Center for Law and Justice at Medgar Evers College. He is a long-time activist for felon disenfranchisement issues. Author and Betty Shabazz biographer Russell Rickford prepared the following oral history for the Africana Criminal Justice Project. Russell Rickford: You were born in 1941 in Harlem Hospital. Where exactly in Harlem did you grow up? Jazz Hayden: 152nd Street between Eighth and Macomb. That part of Harlem used to have the Polo Grounds back then where the Giants played. And we had Yankee Stadium. That was the time we had three major league baseball teams in New York. I guess it was in the middle of the second World War and Harlem was Harlem. Kinda like Harlem is today. RR: In what way? JH: Well, in terms of it being an economically, culturally viable community. Some of the things they’re trying to rejuvenate today, you know. You see the return of the black middle class. You see whites beginning to return to Harlem. And you see the economic infrastructure being built up. Housing development, all kinds of development is taking place in Harlem. But the Harlem of the 1940s was a community unlike the Harlem of the 1970s. I mean, this was before black and white flight. So, we had a professional, black professional class there. It was the cultural center of black America. We had the Apollo Theatre. We had all the clubs, like Small’s Paradise. We had all the sports figures there: Jackie Robinson, Roy Campanella, Sugar Ray Robinson. All these people owned entertainment spots. And there were all the churches. And we had figures like Malcolm X. Harlem was alive.

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RR: Was it a good time to be a young boy in Harlem? JH: Well, there was a lot of poverty there, too. I was born into a very poor family. But back then there was a lot of self-help available in Harlem. We had Daddy Grace, Father Divine. There were places you could go on Friday or Saturday, take the whole family and eat for virtually nothing. Or you could go into a barbershop and get a haircut for a nickel, fifteen cents. You know, your parents would give you maybe twenty-five cents and all the barber would get is five. The other twenty cents went for things that kids spent money on. We had the horses and buggies, and we still had the cars with the sideboards and the trolleys, you know? Harlem was a cultural place. RR: Tell me about your family. You had siblings? JH: Yeah. I had six brothers, one sister. Presently, I’m down to two brothers, one sister. This is the dark side of life in Harlem. I lost a couple brothers to the HIV virus and one to violence. And another for medical reasons. And only three of them are still surviving. Got one out on the West Coast. He’s a “sidewalk executive,” a street merchant. Always selling something. I think my other brother’s retired. And my sister, she’s still around. She and her family moved out to Pennsylvania. I got eight children, eight grandchildren, a set of twins on the way. So the story continues. RR: As a kid, how much of an impact did poverty have on you? I mean, on the one hand, you’re talking about how exciting a place Harlem was. On the other hand, you were dealing with poverty. So how much did that poverty shape your childhood? JH: Poverty was devastating. The personal affect of it was—oh, I can’t even begin to explain . . . you know? As a young child, you come into the world, you’re impressionable, and you want to be accepted. You want to fit in. Holes in your shoes and short pants in the wintertime. Mayonnaise sandwiches and the whole thing. Hunger and a lack of the things you need to feel good about yourself. All those things were there. They were all part of the growing-up process. And I imagine they scarred me in a lot of ways. Hopefully, nothing permanently. I have an abiding sympathy for people that are trapped in poverty. It can distort your whole reality. I think it had a lot to do with my failures in school. Because a lot of my failure had to do with a lack of the bare essentials. When you’re young, you’re a baby, not even in your teens, your ego is very, very fragile. So, oftentimes, I guess, I avoided school simply because I didn’t want to expose my family’s poverty. I imagine a lot of families in Harlem were going through that. And the way the welfare system was set up, it kind of forced fathers out of the home, too. So my mother and father, they were separated at an early age. He was a merchant marine. An English teacher. Tailor. Numbers runner. And while he was off to war, he was sending money back to my mother. And she had to use it to survive. RR: This was World War II? JH: Yeah, he was in World War II. A merchant marine. He and my uncle. So, anyhow, my family broke up early in my life. As a single parent, you know, my mother had to rely on domestic work—that kind of thing—to provide for us. So, it was kind of rough. RR: When did you become conscious of poverty?

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JH: I can remember living in a basement apartment with mice. Me and my brothers named them. When the lights went out, they came out. They were kind of like pets. RR: When did you start skipping school? JH: Well, school . . . I had problems in school. I don’t know if I ever told you the story, but when I was, I think, in the first grade, or kindergarten, the first book I ever learned to read was See Spot Run. And I learned how to read the book, and I learned it quickly. You know, riding the buses and the trolley with my mother, I learned how to read by seeing the advertisements and little by little I learned how to read. I asked the teacher if I could take this book home so I could read it to my mother. Remember, I’m only five years old at the time. The teacher says I can take it, but I have to wait ’til Friday. So when Friday comes, the teacher doesn’t show up. The teacher who was substituting for her, when I’m getting ready to leave says, “Where you going with that book?” I said, “I’m going home with it.” She said, “You can’t take it home.” I said, “But the teacher said I could take it home Friday.” And I started out the door. She pushed me back and snatched the book. I took a flower pot and threw it at her. So they kicked me out of school. And I’ve gotten kicked out of every school I went to since then. That was my first contact with abusive power. And that had a long lasting effect on me. Still influences everything I do. Here’s a child proud of his accomplishments who wants to go home and share them with his family. And all the teacher could think of was exerting her authority. This is somebody that’s supposed to be helping me and cultivating my mind. RR: Who was interested in cultivating your mind? JH: There was one—my aunt. She’s still around today, God bless her. Actually, my aunt and my uncle. He was a merchant seaman like my father. I would visit them every Sunday. This happened all the way into my adult life. At their feet, I learned everything I knew. My thirst for knowledge. My love of art. My understanding of geography, philosophy, all started with them. I would come there every Sunday, and we would read, we would listen to jazz, which is ultimately where I got my name and my love for jazz. And then my uncle, he would travel all around the world, and he would bring back different things, and he got me interested in geography. I began to see a world larger than the one I was living in, the one I was trapped in. So that was like a university to me. And that stimulated my interest in all these different areas: poetry, literature, art. Both of them were artists, they painted. They had a jazz collection that was huge. So by the time I was fourteen or fifteen years old I knew everybody, every jazz musician that existed. I used to go to Birdland, the Five Spot, Slugs. And all the good things that happened to me happened there. RR: Did you want to be a jazz musician at that time? JH: I studied jazz and I went to school for jazz. But when I began to hear people like Charlie Parker, Clifford Brown, and Miles Davis and the way they were running around on those horns, there was no way in the world I could do that. Plus, I didn’t have the time to dedicate to music. Life, for me, has always been a question of survival. And so in the struggle between these two conflicting things—a need and a want—the need won out. So I decided to just be a jazz lover. I didn’t have the time

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to dedicate to the music or [that is] required to be a successful, creative musician. But I love the music passionately. A lot of people nowadays ask me, “Where’d you get the name ‘Jazz’?” They think I got it from the way I walk, or some other characteristic. They don’t know I studied theory, harmony, you know? I studied classical music. I studied all kinds of music stuff. RR: At that same age—fourteen, fifteen—what kind of pressures did you feel from the street? JH: Oh, the pressures? Well, poverty was always the driving force. I think that influenced everything that happened in my life. I worked jobs as a stock boy, delivery, you name it. At the time, the minimum wage was a dollar an hour. So I worked a fortyhour week. If I wanted to buy a suit, I had to buy the pants one week, the jacket the next. If I wanted to go to a dance, I had to sneak on the subway. Then when I got to the dance, one guy had to pay his way in and open up the back door and let the rest of us in. So, I mean, the poverty thing was constant. The jobs and working was like Sisyphus trying to push the rock up the mountain: I wasn’t going anywhere. So naturally you drop out of school. The labor market has nothing for you and you drop into the streets. And you begin to use your wits. You become a magician, you know, you try to make something out of nothing. And you wake up every morning and that’s what you do. You hustle. And it becomes a way of life. But your objective is always—you’re trying to hustle away from poverty. You’re not hustling toward anything. You’re trying to hustle and get away from things. And naturally, this brings you into contact with law enforcement. RR: What was your first contact with law enforcement? JH: That’s been a continuous part of my life all the way from ten years old on up. [I] mean, they’re there. They’re just there. It’s a continuous part of life in any black community. But specifically in the Harlems of this nation. Police are there. They’re occupying. For the most part, they don’t live there. They come from outside the community. It’s a constant war, you know. These are residential communities. When it snows in the wintertime, people are trapped in these buildings and tenements and housing projects for months on end. The weather breaks, and everybody comes out and sits on the stoop. Here comes this bum police officer from the suburbs. He wants the stoop cleared, so you can’t hang out. It’s just constant, you know. And no matter what you do, they’re always there. And having later had the prison experience, you know, I would liken it to my experience growing up in Harlem. Or probably what slaves went through on those plantations, which in effect were nothing but prisons also. The model has just morphed, and the ghettoes become plantations. Police and the prison guards become the plantation owners. There’s a war going on. It’s low intensity, but it’s constant, you know. RR: When you first got locked up, did you have that same kind of outlook? There’s a war going on, you’re on one side and the cops and criminal justice system on the other? JH: I wasn’t certain of that; the first time I got locked up it became a reality, there’s no question.

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RR: In what way? JH: I ended up being sent away as a juvenile for what kids do when they’re juveniles: jumping turnstiles, being out of school, fights. And I spent some time in a place called Children’s Village. Which was really a good experience because my earliest memories were of cement and bricks. That’s what Harlem was. Trees were something you had to go find in a park somewhere. It was kind of a really stark environment. They sent me up to this place in Westchester County called Children’s Village. Man, there were just trees, grass, cottages, open air, you know, sports. It was a different world. And until I made that trip up there, I had no way of comparing anything else with the life I was living. Television wasn’t even a reality back then. If you were fortunate, somebody on the block had a television, you know. But it wasn’t a common thing like it is today. So your view of the world was basically restricted to where you found yourself. Anyhow, I spent about two and half years up there. I became very good at sports. So good, in fact, that I was promised a scholarship at Fayetteville Teacher’s College. All I had to do was complete high school. Anyhow, you know, that ended, and I had to return to Harlem. I came back looking at Harlem with a whole new set of eyes, from a different perspective altogether. Now I could compare. I could see where I was living, man. RR: Did that experience of returning to Harlem embitter you? JH: No, it didn’t embitter me. It was just kind of shocking to come back on Metro North, or what we now know as Metro North, and hitting 125th Street and seeing the dramatic change. All of a sudden it’s back to brick and mortar and dirt, overcrowding, poverty, the contrast between the urban and that suburban environment. Because Children’s Village was located in the midst of probably some of the most expensive real estate in New York—you know, Westchester County. I played ball all around Westchester County, so I got a chance to see a different world. It was like, . . . [half-whistles, half-sighs] . . . Okay? RR: Once you came back to Harlem did you try to get away? JH: No. Actually, I had been trying to escape from the juvenile prison; I was trying to get back to Harlem. I did a couple times. And ultimately they got tired of me and put me out of there. But, my home was here. My mother, my brothers, my siblings. And that’s what a child longs for. There might have been more opportunity there, but that’s what I was missing. I was missing my family. So, anyway, I got back, I went to junior high school, got kicked out of there, and went to Charles Evans Hughes High School, ended up dropping out of there. Tried to work. That didn’t work. So I began hustling. And the first time I attempted to get involved in the drug trade, I was arrested. The very first time, man. RR: How old were you? JH: Sixteen. I was arrested with a small, a very small quantity of drugs, man. And I went to court. And my family had arranged for me to go into a drug program. Just a baby, you know. They locked me up, and that first night the gate slammed and I was in that cell all by myself, and it seemed like that might have been the first time in my life that I had ever been by myself, you know. Sealed off like that. And I was rehabil-

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itated on the spot. Whatever it was. I was ready to go back to school, I was gonna work, you know. I mean, I saw what the future was. Right there, one night! My family worked to get me into this program and I went to court and this judge said, “You’re not going into any program, you’re going to prison.” Huh? This guy sent me to prison for three years, man. Three years. Those three years of my life probably ended up changing me in a way—it had an indelible imprint on me. I made parole three times, and three times I lost it. I never got out of the joint. I was in a state of constant rage. Constant rage. Authority from that point on—I wasn’t listening to nobody, didn’t care about nothing, wasn’t following no rules, right? I did every day of that three years. They had me locked in a cell with nothing but my underpants and socks on, and they’d give me the mattress at night and they’d come back and take it in the morning. And every morning they had to fight me for that mattress. When it came time to leave prison they generally give you a shower and give you clothes. They wouldn’t even let me out for a shower. I was a raving maniac! I left out of there, called them everything but the son of God, and vowed to come back and kill them all. I’m just a baby—eighteen, nineteen years old—but I had been so scarred by this experience. And my life went like that from then on. I had no fear. The system had lost all legitimacy for me. The prison they sent me to was in Comstock, New York. And it was an experience. It was segregated. It reflected the society outside. The people in authority were racist. The place was incredible. For a young person, this kind of experience brought me face to face with the reality of what was America. And this is when I began to read and study. When I went into prison I had 20/20 vision. Within six months I needed glasses. I literally went blind. I was sitting in the dining room, and I couldn’t see. They sent me to the doctor and I got glasses. I would read at night when the lights went out. The lights would go out at nine o’clock. But there was a little light out on the tier, I would sit there by the bars and read. And you only had an hour a day in the yard. So everyday we would come out of our cells. We would read all night and then we would come out and there was, you know, debate, discussion. You wouldn’t have enough time to finish whatever you were saying, so you would have to go back and arm yourself for the next day’s debate. They had minds in there. It was my university. All the schools I went to I never lasted a minute. But suddenly I had a thirst for knowledge. I studied everything. All the Greeks, the philosophers, history. RR: Where did you get the books? JH: The books were there. Some of them were so old and in circulation so long that the pages were falling out. They were brown and raggedy. We read everything. We read cowboy books, we read political science, whatever was available, you know. We just read and discussed. This is how I educated myself. When I came out of prison the impact was devastating. I came out of there and I went back to the streets. I bounced back and forth for most of the 1960s. And then in the 1970s, at the tail end of the civil rights movement, the Panthers and the Black Liberation Army had taken the struggle to another level. Somewhere along the line, somebody attacked two police in Harlem. They stepped up on a police car and fired some shots in the car. Immediately after that, the police reported the crime and, based upon what I subsequently found out, identified the attackers as being African

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Americans, six feet four, six feet five inches in height. I ended up being [chuckles] arrested for this, you know. But I’m five feet five, right? RR: When was this? JH: This was in 1969. Just before my thirtieth birthday. They pursued me in Harlem. They had a $10,000 reward out for me. They were kicking in all the doors of the after-hours clubs. Trying to stop everything from going on in Harlem. Trying to threaten everybody to surrender me. I’m trying to figure out what I was being pursued for. During the course of this, I had a couple of narrow escapes. And then finally they apprehended me and charged me with the attempted murder of these police officers. These friends of mine came to my rescue and they bailed me out. They sent somebody for me—a bail bondsman—and he sent for me. I came over to see him and he said, “Listen. The police told me they didn’t like the idea of you getting out of jail. But if you’re looking to stay out, you’re looking for some money.” I think I came out on, what was it, $50,000 bail or something. I had some people in the community who, you know, cared for me. And if I didn’t pay this money, they would charge me with another count of attempted murder that was supposed to have taken place when I was fleeing apprehension. I said, hold it. They’re framing me on the first one, and now they want me to pay them not to frame me on the second one? I told them in so many words that, you know, they could kiss my ass. So, sure enough they arrested me and locked me up and charged me with attempted murder while fleeing arrest. They said that I’d turned around and fired some shots at the police. So now I got these two charges of attempted murder on the police. I go to trial, thinking that I would be going to trial on each one of them separately. But they filed a motion to have the two indictments joined together, because their theory was that one and the same man committed both crimes. So we go to trial and the jury finds me not guilty on the first one and guilty on the second. But based on their theory, if one and the same guy committed both crimes, if I was found not guilty on one I should have been found not guilty on the other. So anyway, they gave me eight and a half to twenty-five years. For this, man, eight and a half to twenty-five years. They sent me to Attica. And I’m already living in a state of rage. And have been all my life. Attica, you know, that was it—besides being in there for a crime I didn’t commit. At that time, prisons and jails, especially in New York, were filled to the brim with radicals. We had the Weathermen, the Students for a Democratic Society (SDS), the Black Liberation Army, the Black Panther Party, the Young Lords. You name it, they were in there. So the jails and the prisons became universities. I mean, there was radical literature in these places. The political air in there was so thick, you could cut it with a knife. Everybody was politicized. We’d read Marx, you know, Marxist literature was in there. There was a publisher called International Publishers, and all of their stuff was free to prisoners. So we had everything in there. We had the complete works of Marx. We had Mao. We studied Ho Chi Minh, Che Guevara, Cheikh Anta Diop. Wherever there was any kind of anticolonialist struggle, or any revolutionary struggle going on anywhere in the world, some literature about it was coming into Attica. The Nation of Islam’s newspaper, the Black Panther’s newspaper, the Young

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Lords’ newspaper. And we had all the college students from the Weathermen and the SDS. Everybody was teaching everybody. And so it was a beautiful thing. In Attica, I got very involved. Involved to the point where I began to organize and teach. We would hold political classes all during the exercise period, as a group. Two hundred guys in the middle of the yard doing jumping jacks. Dust rising up from the ground, a big cloud of dust. And the amazing thing about this was that the staff that was working there was oblivious to what was growing, taking place right in front of their eyes. There were a bunch of hillbillies up there in upstate New York. They were sitting there. I mean, just as long as we obeyed the other rules, whatever they were, they couldn’t see what was right in front of them. A population was being politicized, a whole new consciousness was coming into existence. All week, we would be broken up into small groups studying, and then on the weekend we would take all the tables in the yard and line them up in rows, and we would start to teach classes in law: how to file a motion, how to file an appeal. We turned it into a schoolyard. We began to dissect the system, the prison, the industry. We began to take it apart. We had some good minds in there. Like I said, the overflow from the civil rights and antiwar movement had come over the wall into the prisons. You mix them with this urban underclass, and you had a volatile mixture. Anyhow, we had so many groups in there that it was like an alphabet soup. So, in order to eliminate all these differences, we called ourselves the People’s Party. And at that point we began to see ourselves as one. Six days before the place rebelled I got shipped out. I got a reversal on this frame-up and I got into an altercation with some guys in there. [Laughs] The only group in the prison that wasn’t cooperating with everybody else was the Nation of Islam. They had a policy when people joined their group and then quit to send out a squad, you know, to give the guy a beating. And this was reactionary in the face of everything that was developing there. We drew up an indictment, and served it on them, told them that this couldn’t happen. Whatever happened in the past, it wasn’t going to happen anymore. That was it. And I don’t think they had ever been challenged like that before. Because of this, the leader of that group was shipped out. And then, six days before the place went up, I was shipped out. And I watched the whole rebellion on television. As you know, it resulted in many deaths, both prisoners and prison staff, which kind of clarified one important fact, if nothing else: Both of us were expendable. Governor Rockefeller sent in the troops, and everybody died. So right after I was freed—the conviction was reversed and they dropped the charges—and I went to college. I forgot to mention that I got my G.E.D. and had the second highest score ever in the state. Got it in Sing-Sing on the way to Attica. Without any preparation. All that reading and everything that I did when I was first arrested I guess paid off. RR: How did you discipline yourself to study? JH: Well, it’s a thing with me—wherever I go I try to—I guess “water seeks its own level” would be a good way to put it. I excel if I have a nurturing environment, an environment where I have an opportunity to develop myself. I’m always on the path of improvement. As the Sufis would say, “moving toward perfection,” right? And that’s one of my biggest beefs. I wind up with four college degrees. A master’s degree from New York Theological Seminary; a bachelor’s from SUNY New Paltz, magna

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cum laude, class valedictorian; two associate’s degrees. If you go through the normal process and get these degrees by the time you’re twenty-three years old, then you go off into the world and carve out a niche for yourself. I’m getting these degrees in my late forties and fifties. But the potential to get them was always there. Had I learned how to read that first book, had I been given the opportunity, I would have ended up at Harvard. Or right here at Columbia with you guys! There’s no telling what my future would have held for me. But because I was derailed at that early age, I never got a chance to move along the normal track. This happens a lot—it’s all too common. I mean, because the failure rate in New York City just alone in our public school system is like 60 percent, right? The prisons ultimately become the repository for those public school system failures. They drop out of school, they drop in the street, they drop in the criminal justice system, the prisons. It’s a process. It’s been going on. This is nothing new. This whole massive incarceration thing is really the people who they feed into the system. RR: Was there a time when you were in prison that you felt free, that you liberated yourself? JH: Being in prison is no different than being in Columbia and Harvard. It’s a point of view. I spent a lot of time in prison and it was always for me either a monastery— someplace I was meditating—or it was a university. There was just so much to learn. Malcolm X is an excellent example of that. Nelson Mandela also. Nelson Mandela reemerged into what we call the free world. He came out and it was like he had never left. Because he stayed current, he stayed focused. He continued to grow, continued to develop. He came out they made him the first president of South Africa. He was unique. He’s not run of the mill. But I’m telling you, as someone that has been there [chuckles]—and this is important—there are many Malcolms, many Mandelas in there. Guys that, if you didn’t know about their backgrounds, you wouldn’t be able to tell the difference. I mean, excellent brains. Analytical, critical minds. Teachers, scholars—without all the benefits of huge libraries and access—but thinkers. But only a few are going to shine. There will always be those really exceptional people like Malcolm and Mandela. But the prisons are places where the rubber meets the road, so to speak. Places where you really see the system for what it is. I came out and I started going to Malcolm-King Harlem College Extension. I was doing English papers, regular stuff that you do in your first year of school. We had to read them in front of the class, and I was getting standing ovations. I’m looking around at these people trying to figure out what’s so special here. Then I begin to listen to them and see their papers and see how they were struggling. They didn’t have a clue about the world. It’s something about that prison experience that sharpens your consciousness, man. You really begin to examine your world. You cease to be an object and you become a subject. You begin to look and examine and dissect. And when you have twenty-four hours a day, set aside for a couple hours to exercise and whatever passes for work in there—that you have to do—the rest of your time, if you’re a thinking person, and you’re conscious and alert, then you’re studying. Talking about everything. Talk about a renaissance man: this is what you come to be. Because you have to study everything, you don’t get the chance to practice much of anything. So you start to live in your mind. Because you’re shut off from the world—all your input is

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secondary; it comes from the radio and from people who come in to visit. But pretty much you’re shut off from the world. If you’re not engaging in something that has you focused and engaged, then there’s nothing left but routine. And you have to atrophy, if you just go with that. You find guys that all they do is play ball all day. Nowadays it’s the BET rotation and basketball and sitcoms on television—and it’s mind-bending. It’s mind-bending! RR: Did those guys frustrate you? JH: Well, you know, you learn to live with them. And as you grow, you learn to understand what has happened to them. Same thing that’s happened to you. Only thing is that you have turned around and taken a look at your life. You understand. You understand the process and you understand its root causes. You understand the society and how it’s structured. You develop a point of view. So you got to be tolerant, you got to be patient. And what’s more powerful is that, when you begin to identify those powers that have built this, and maintained this structure—you do the historical research—and you see how they got here, how this came to be. A lot of people, the average person in America, looks around, and they think the world has always been like this. They don’t understand that these are social constructs put together by people. When somebody is trying to manage chaos, they create institutions and laws. All these things serve a purpose, and they serve individuals and groups. And as you begin to look and you begin to see and understand these things, you begin to understand that you’re part of a population that has been targeted by an institution and laws—this criminal justice system. For African Americans and poor people in this country, it’s equivalent to that campaign that America just put on in Iraq. U.S. just went over there and just totally took advantage of a people who couldn’t even defend themselves. And in the process, destroyed a history that belonged to all people, all human beings. Here’s the so-called cradle of civilization, and these barbarians from a country two hundred and something years old, went over there and destroyed the cradle of civilization! Part of their own, Judeo-Christian tradition. You know, it all came out of that place there. The so-called Garden of Eden. Abraham. Man’s first attempt at writing and agriculture. All of this. And they could just go over there and do what they did. And they do this all over the world. They’ve done it to us. Their history is bloody. And, you know, that helps you survive, right? I don’t know whether you ever read a book called The Will to Meaning by Viktor Frankl. He was in a German concentration camp, and he talks about the people who survive and those that don’t—and the difference. To survive, you have to have a reason to survive. That’s not just in prison. That’s in the ghetto. You have to have something, man, that you want to achieve—some unfinished business. That’s why you see most of the kids today—they don’t see themselves in the future, so they more or less surrender. They become suicidal. I’ve been suicidal, so I understand where they’re coming from. But when you’re in prison, and you’re locked down, and every movement is controlled, you’re rendered powerless. And then you got a bunch of buffoons in control of your life. They’re not as smart as you, they’re not as strong as you, they’re not as handsome as you—you see what I’m talking about? And yet they control every detail of your life. You have to bend over and spread your cheeks and let them look up your ass

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every time you visit a family member, or a friend or something. And it’s humiliating, it’s debasing. But there has to be something of value that you cling to. Something that you’ve hidden that makes you say, “Alright, I’ll accept all this debasement, this dehumanization.” RR: What was that for you? JH: It was my abiding dislike for abusive power. I’m going to make a difference. They’re going to feel me. Some way, man, I’m going to have some input in dismantling this. And I don’t have to make any money to do it; I’ll do it for free. This is what I want to do. I’m dedicated to this. This criminal justice system has to be dismantled. It has no legitimacy. Everyone who claims to be an advocate, or on the side of justice and humanity, or out here doing anything on behalf of the populations that are impacted by this criminal justice system, needs to come together; they need to stop competing and develop a model of cooperation as opposed to a model of competition. People working against the criminal justice system need to organize themselves. Just like those people who are trying to maintain the status quo; they speak in one voice, they’re organized. We need to do the same thing. That’s it. That’s all I have to say about that. Until they do, I’m going to be blowing my horn, and I’m going to be holding their feet to the fire. We’re going to make it happen. And I think the group that needs to be organized more than any other is the group that’s most impacted by these policies, by this criminal justice system. And that is the prisoners, the parolees, their families, and the communities that they come from.

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POLITICAL RIDDLES: BITTEN, SEDUCED, AND FOOLED Alejo Dao'ud

Mosquitos! or what would you call Something that takes a bite out of you, When you not looking and sucks your blood Don’t even knowing that it’s being done? All you know is that your left scratching like Ahh! man something bit me man! Politicians. When that happens I think of politicians. I mean you could call it mosquitos or vampires But then again vampires don’t leave you scratching They leave you for dead . . . But they’re all the same Mosquitos, politicians, vampires They’re all blood suckers, sucking the blood out of suckers You and me. Feeding off of you and me Suckers/tricks like Prostitution! Or what would you call being taxed For a promised behavior? Promises that’ll make you feel As though you’re being taken care of And where the money paid eventually goes To some pimp in a stretch limo? Now you could call this organized prostitution, But I call it politics. You see, Minus the actual release, the climax, the sex Politics are screwing a whole lot of people By the millions and making millions turning tricks. Still politics and tricky, tricky, tricky Political Pimps Pimpin’in a game of confidence, a con man’s confidence Could never be played without believers

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Believe that there’s an easy way to get over. In the game like Three Card Monte! or what would you call Placing a bet on a card that’s not even there? Praying the way people play Lotto Dreaming to hit a number. And believing that it’s worth the gamble, And if worst comes to worst we trust That the proceeds will go to some social institutions Like our city schools, But neither of us ever hit that number and When we look at our city schools The money ain’t there either. But somehow still politicians can always find more money to build more prisons . . . From a dollar and a dream and you too Can have your children in a cell Now you can call this just placing a dollar bet, But me, I call it a damn shame. A police state. Or what would you call Apartheid Americano? With 99% of the population on one side of bank And l% on the other side. Capitalism at its best—capitalizing on ignorance And people ignoring it Too busy to get involved with it Too busy digging their own grave in it This White Collar violence. The evil, the criminal The political that people vote for If they show to vote at all And you know, it was Malcolm who said: Revolution: “The Bullet or the Ballot” But people still don’t vote and the bullets We use we use to kill each other. While Martin said: It was “Non Violence” but he didn ‘t say Pray and wait and nonparticipate A pacifist is pacified and satisfied with lies Martin was anything but pacified And satisfied with lies He was, get in your face, involved. He was involved, get in your face—involved Get involved: ask why Why we hear more about the Middle East Than we do about real figures of Police brutality? Why? Why do Americans spend more money on entertainment than education? Why?

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Why? Is it because it is easier to dance, sing, get the video. Drink, smoke weed, play ball or tell the joke Than it is to learn about the reality Of the joke being played on us Or is it that learning bears knowledge And knowledge bears a responsibility And responsibility makes you bear the stand Makes us understand Why we need to take a stand Like Malcolm and Martin took a stand The best way they knew how Like Geronimo Pratt took a stand, Like Dhuruba Moore, Assata Shukur Took a stand like the Puerto Rican 15, The American Indian Movement, The New York Three Albizu Campos, Loita Lebron, George Jackson, Angela Davis Took a stand the best way they knew how. The best way they knew how Imprisoned, Exiled, and Assassinated Now this the riddle: How is it that we keep looking for the sixties To help us define our 21st century? When the sixties was the sixties for the sixties If we really want to honor the contributions Of lives that people gave—the lives That we have benefit from We don’t forget, but we don’t stay stuck, the riddle Is in the paradox But we must still Move forward The struggle changes as time changes the journey But the real question inside the Theme stays the same Is it better to be in the fight for freedom Than to fight off the feeling of being Bitten, Seduced, and Fooled Mosquitos, Prostitution, and Gambling For our lives?

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A VICTIM TO PASSION Robert Sanchez

I keep reliving a mistake, Falling victim to a passion, Which is not in fashion, When you ‘re locked up. I am I am I am what I am like. Gertrude Stein is what she Is what she is. Sentenced to a life without passion, Is what the honorable justice read, Though the words weren’t said, I heard them that fateful day in my head. I am not human Not yet Not until the parole board Says I am So I go on and on and on Trying to control my passion until I’m gone. But The passion, The love does not understand The sentencing structure. The need is deeply etched in a soul That is parched in a SPIRIT That refuses to let go of what is natural. So please forgive me, Yet again, For thinking/knowing I can be like them, Human once again. . . .

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WHAT DOES THE GHETTO MEAN? Robert Sanchez

Excuse me for waking you up out of your nod . . . But we have a problem that We Ghetto-licious people must prod Man, what is the problem, brother What is the problem? The problem is that The Ghetto is democracy’s secret Kept on the down low As low as that nod that keeps you oppressed Black and Latino struggles That keep us stressed Everyone searching for a piece of the American Dream on the step of a ladder on afire escape Just waiting And Waiting for A Hero without a cape Brother Ghetto is street corner bodegas With Neon Cerveza signs Blinking And Blinking And Blinking with The counter-man The banker man The selling pamper-man The baby-food man

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With interest, Man. Begging for your life savings In the spirit of Capitalism The Ghetto is the dopefiends’ kingdom That collapses in the rush of a hit Collapsing and collapsing Like the building down the block Where your great-grandfather used to live And your boy now sells pot The ’hoods artistry long ago burned Caught on a front-page picture A symbol of Ghetto American Structure The Ghetto is piss-smelling alleys Used for a resting place By men and women Who settled for the dream found In a bottle In the smoke coming from a pipe Not right Not right Succumbing to these crack demons without a fight Listen up people! We have a serious problem We Ghetto fabulous Ghetto-licious Ghetto marvelous People Ain’t got no pull We’re human cattle being led To the slaughterhouse like everything is cool With bars as thick as the Dough we produce With this poem I look to induce Thought to Love yourself Challenge yourself Educate yourself Have pride in yourself See yourself as the beautiful Creature that God intended you to be.

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CHALLENGING THE PRISON–INDUSTRIAL COMPLEX

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STATE OF EMERGENCY Angela Y. Davis

According to the New York Times of April 12, 2003, Secretary of Defense Donald Rumsfeld “minimized the disorder [in Iraq] as inevitable as [the country] moves from a repressive to a freer system of government.” In the article, which reports the details of a Pentagon briefing held the previous day, Rumsfeld gives a very interesting definition of freedom. He says, “freedom’s untidy. And free people are free to make mistakes and to commit crimes and do bad things.”1 If freedom is the freedom to make mistakes and commit crimes, I suspect that the whole project of reconstructing Iraq will bring prison-building companies, who will be vying for contracts, to bring U.S.style prisons to Iraq—as they’ve already come to Turkey. The Bureau of Justice statistics report came out recently, indicating that there are now over two million prisoners in the United States. If you count in this expanding prison system not only state prisons but county jails, federal prisons, youth prisons, immigration detention centers, and military prisons—and if you also count what they call jails in Indian country—the number of people who presently live their lives inside U.S. prisons amounts to about 25 percent of the world’s prison population; the total U.S. population makes up less than 5 percent of the global population. If freedom is the freedom to make mistakes and commit crimes, we can say that the institution of the prison is one of the central institutions of democracy. Of course, these opening remarks are intended to poke fun at Rumsfeld and the Bush administration, but there is a major kernel of truth here. As activists, scholars, and cultural workers who devote a great deal of time to the campaign against the prison–industrial complex, we need to attend to the ways this set of institutions and ideologies is interwoven with those that make up the military–industrial complex. Our task is to explore the connections and implications, and to think broadly rather than myopically and narrowly. How do we contest the impulse toward specialization that so deeply shapes this contemporary world? How do we challenge the prevailing assumption that the various communities we inhabit do not really overlap and are not really related? The academy is a separate community, and then there is the “community,” right? As if the academy were not a community. As if the various communities beyond the academy have no relationship to the academy. Specialization and professionalization at the academic level are often about turf protection and prevent

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many academics from thinking about what Cedric Robinson sometimes calls the conceits of one’s framework of analysis. In contrast, at the level of activism, there is also a kind of specialization and professionalization that is furthered by the funding structure for nonprofit organizations. This kind of specialization and professionalization often prevent us from making the very connections that are essential for developing radical theories and practices. I began by evoking the war in Iraq. We are in a state of emergency. When I say state of emergency, I think about the Steel Pulse album State of Emergency, but I also think about Walter Benjamin’s vartavinya state of emergency. The United States has proclaimed victory in Iraq, and an image that has circulated widely has been that of the huge statue of Saddam Hussein being brought down by the so-called collaborative effort of marines and Iraqi citizens. However, before that statue was brought down, a marine draped the U.S. flag over the face of the statue of Saddam, which made wonderful symbolism. The marine who draped that flag over Saddam Hussein’s face was a Chinese-American marine, and the message seemed to be—as some of the Arab media pointed out—a new dictatorship with an American face. But how do we build movements that immediately recognize the connections between the antiwar movement and the antiprison movement? How do we talk about the fact that many of the military women and men who are currently in Iraq were compelled to join the military to avoid the possibility of a long stint in prison? Faced with the demise of affirmative action and the deindustrialization of the economy, which has left so many communities with no jobs, many young people of color decide to join the military to avoid illegal economies that become pathways to prison. They joined the military to get an education, joined the military to develop trades—and now they find themselves in Iraq, placing an American flag on the face of Saddam Hussein: this is very, very bizarre. How do we build on the ways in which the shifts in our vocabulary around the notion of a prison–industrial complex have helped to create conditions of possibility for radical, anticapitalist, antiglobalization theories and practices? How do we analyze the U.S. Patriot Act, which was passed not too long ago (in October 2001)? Do you remember what the acronym “U.S. Patriot Act” stands for? It means “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism.” This is a very interesting way of linking the impulse toward patriotism that we are offered with the development of a massive apparatus of political repression. It seems to me that this revitalization, this rebuilding of the growing apparatus of political repression, is taking place on the terrain that has already been created by the development of the prison–industrial complex. It seems to me that—whether academic, cultural, activist, or educational—formations focusing very sharply on the way the prison–industrial complex affects black people must be willing to acknowledge and build on the idea that these circuits of repression link the fate of blacks, Latinos, Native Americans, and poor whites and Asian Americans who have been captured by the prison system. Being captured by the prison–industrial complex doesn’t simply mean being put in prison, it means being captured in the connections and interstices of those relations that constitute the prison–industrial complex.

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Furthermore, how do we understand the extent to which the fates of imprisoned people of color who have been captured by the prison–industrial complex are linked to the fates of Arab people, Middle Eastern people, and people of South Asian ancestry who, in the wake of September 11, have been deemed possible terrorists by virtue of their background? People are often detained without charges and lost in the crevices between the disestablished Immigration and Naturalization Service system and the new fascist-leaning Department of Homeland Security, which now rules over the Bureau of Citizenship and Immigration Services. I’m not sure whether we should relegate some individuals and organizations to the front lines, thereby relieving others of the responsibility of relating their work— whether it be research, education, cultural work, or activist work—to the radical project of trying to build a better world. Julia Sudbury has spoken about the process of building a movement, an organization that we decided to call Critical Resistance. It was at the Critical Resistance conference at the University of California–Berkeley five years ago that a very diverse group of individuals and organizations began to explicitly take up the project of shifting the way people think about crime and punishment in this country. As a part of that group, I can remember during the early nineties offering to speak on college and university campuses about prison issues and being told that that was not an appropriate topic for a university lecture. I can remember the responses of people in the audience, who had been very much seduced by the anticrime rhetoric that Michael Moore narrates so well in his documentary Bowling for Columbine (2003). One of the major goals of this project was to encourage people to develop new vocabularies for conceptualizing and talking about the apparatus of punishment in this country. I’ll name just a few individuals who have contributed to shaping this important project: Eddie Ellis and his very powerful analysis of the prison–industrial complex and the way anticommunist ideologies helped to fuel the acceptance of the equation of crime with blackness. Charlene Mitchell and her thirty-five-year history of organizing against political repression. Charlene organized the international campaign that was responsible for gaining my freedom, and she was also the major organizer for Reverend Ben Chavis and Leonard Peltier in the seventies. Mike Davis and his way of thinking about the transition in central California from an agricultural economy to a prison-based economy. He described the prison–industrial complex as rising up on the soil of a failed agriculture industry. Ruthie Gilmore and her proposed political economy of prisons that link surpluses in land, capital, and labor with the expansion of the prison system. Gina Dent and her critique of our image environment, of televisual and cinematic images of prison in creating a certain level of comfort, vis-á-vis the assumed permanency of the prison. As a matter of fact, Dent pointed out that people have learned how to live inside those images. Therefore, people who see prison films, who watch Oz on HBO, are under the impression that they know exactly what happens inside prisons and, as a result, feel okay with it. Julia Sudbury and Asale Angel-Ajani and their insistance on the transnational reach of the prison industrial complex, especially as it affects women; Asale’s research is on African women in Italy. Leti Volpe and her studies on the effect of the USA Patriot Act on immigrant communities; she has been in the forefront of activist efforts to

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develop immigrant rights. Beth Ritchie and Andrea Smith and their leadership of the new organization of women of color against violence, called Insight, which has pointed out the connections that link intimate violence and state violence—especially as these forms of violence target women of color. Finally, Avery Gordon and his suggestions that the institution of the prison produces new forms of racism and racial classification that ensure that the entire imprisoned population is racialized, regardless of racial or ethnic group. I want to point out that none of these ideas were produced in the orthodox isolation that frequently defines the scholarly enterprise but, rather, were produced in conversation and collaboration with scholars in various disciplines, cultural workers, and grassroots activists. But how do we build on the relatively successful work of the last period of time? I’m absolutely amazed that within the past five years or so the discourse around prisons has completely changed: Maybe not when you talk to someone like Donald Rumsfeld, but when George W. Bush gave the 2003 State of the Union address, he did say that we need mentors for the children of prisoners. Of course, we need a hell of a lot more than that, but that tiny insertion in his comments is an indication that a movement has been created that cannot be ignored. How do we build on the apparent successes, not in decarceration or excarceration but in changing the way in which we’re able to think about, organize around, and contestthis development? How do we encourage broader conversations and activist efforts around the goal of prison abolition? Our previous work stands the chance of being redefined within the circle of legitimacy that is called prison reform if we do not place prison abolition on scholarly, cultural, educational, and activist agendas. Prison reform has always gone hand-in-hand with the further development of the prison system, since the very beginning of the prison system as our dominant mode of punishment. This isn’t to say that we discard agendas that help to make life more livable for those who live inside the prison walls, but there’s a difference between trying to create conditions for people who are inside to live better lives and trying to create better prisons. It has to do with the way we frame our work, and it also has to do with recognizing how easy it is, if we are not clear about what we are doing, for that work to be taken up by the state and used in the service of the state. It means that we link these agendas designed to make life more livable for people inside with other projects. I’m talking specifically about campaigns to eliminate the sexual abuse of women prisoners. I’m talking about campaigns to eliminate the supermax prisons. This trend is not only present in this country but all over the world. South Africa has opened its first supermax prison: We should have not allowed that to happen. We should not have allowed the many supermaxes to open in this country, and what I’m saying is that, if we had a campaign that poised vast numbers of people against the development of this even more repressive form of the U.S.-style prison, then I can guarantee that South Africa would not have been interested in opening a supermax of its own. Other campaigns involve, of course, providing better health care—particularly the important HIV work that Laura Whitehorn talks about and the vigilant campaigns to demand respect for prisoner human rights. These campaigns

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have to be conceptualized as efforts to build structures of deep solidarity with people who are inside, and these structures of solidarity have to be built within the context of a vision that no longer depends on prisons to solve the problems of global capitalism. This is an anticapitalist vision, and this is the vision of twenty-first century abolitionism. NOTES 1. Douglas Jehl, “A Nation at War: Lawlessness,” New York Times, April 12, 2003.

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FROM PUNISHMENT TO REHABILITATION: EMPOWERING AFRICAN AMERICAN YOUTH Monique Williams and Isis Sapp-Grant

If we believed everything that was presented to us in the media, there would be no sign of hope for African American and Latino youth. If we bought into the hype that we are on the verge of being consumed by a generation of “superpredators,” there would be no reason to invest in long-term strategies for youth habilitation and development. If we believed that most crimes were committed by youth of color, our capacity for realizing their value to society would be greatly limited. Good thing we have not bought into that hype—or have we? American criminal justice policy is affected by both the clandestine and the overt connections that have been made between race and culpability. There is no question that sophomoric presentations on the overrepresentation of African American and Latino populations in secure correctional facilities have resulted in dangerous public policy that builds on the perception that people of color perpetrate most crimes. In 1996, most of the individuals arrested for a violent criminal act were white (54.6 percent), but African American juveniles accounted for virtually all increases in the rate of detention between 1985 and 1994. Judges detained 18 percent of white juveniles for drug offenses in 1985 and the same percentage, 18 percent, a decade later. In contrast, judges detained 34 percent of all African American juveniles in 1985—nearly twice the proportion of white youth; their rate of detention increased to 56 percent in 1989 and fell to 44 percent in 1994.1 Police arrest black youth at much higher rates than they do white juveniles for all crimes of violence, especially homicide. So when public policy moves in a direction to “crack down” on violence, these policies disproportionately affect youth of color. This racial disparity can largely be accounted for by the effect of discretionary decision making throughout the juvenile justice process and the manner in which youth of color are criminalized not only by the public but also by the officials charged

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to maintain law and order in this society. A recent study found that in Washington state, probation officers consistently portrayed black youth differently from white youth by attributing their crimes to internal factors as opposed to external factors that might influence their behavior (i.e., environment). For example, probation officers were more likely to interpret a disrespectful attitude toward the current offense or a court official as proof of that young person’s lack of internal restraint against committing future crimes.2 What these probation officers seem to have dismissed is the effect of the crisis of legitimacy facing law enforcement in communities of color. Large percentages of African American and Latino communities are distrustful of the justice system, boldly questioning both its philosophies and practices. A 1995 Gallup poll found that 77 percent of African Americans and 45 percent of whites think the criminal justice system treats black people more harshly than whites. A 1995 U.S. Justice Department survey found that only 31 percent of blacks nationwide “expressed a great deal or quite a lot” of confidence in the police, as compared to 65 percent of whites.3 There have been many hypotheses offered to explain the increasing disparity between the arrest rates of communities of color and those of Caucasian communities in the United States. Among the most cited hypothesis is that there is a greater police presence in communities of color, leading to a greater likelihood for individuals from these communities to be arrested.4 Another hypothesis is that the police have actively maintained a history of targeted, racially selective suspicion, operating largely from the assumption that one’s race or place of national origin serves as an indicator of increased criminality, raising suspicion and arrests among certain communities. Racial profiling, however, is symptomatic of a deeper, systemic infiltration of racism in the American justice system. Most of the courts that have confronted the issue have authorized police to use race in making decisions to question, stop, or detain individuals as long as their reason for doing so is reasonably related to efficient law enforcement, rather than for the purpose of racial harassment.5 Fueled largely by the war on drugs, the increased incidence of racial profiling has left communities of color feeling powerless against the systemic racism that criminalizes activities such as driving while black (or brown), walking while black, standing while black—essentially, just being black (or brown). Racial profiling has allowed officers to stop and question anyone matching any of the nearly forty-seven traits admissible for suspicion of drug trafficking, including: Arrived late at night Bought a coach ticket Traveled with a companion Arrived early in the morning Bought a first-class ticket Acted too nervous Arrived in the afternoon Traveled alone Acted too calm Was Hispanic Was a black female Dressed casually6

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The trend to commit more children of color to secure detention facilities has created a culture in which to have gone to prison is a badge of honor—a rite of passage that has influenced many aspects of hip hop society, and therefore young African American popular and economic culture. Detention is used as a solution for addressing the aberrant behavior of our youth, when in fact its only effect is in adversely affecting employment, education, and the healthy development of families and communities. In contrast, given the recent tragedies in Arkansas, Georgia, and Colorado, when white youth have engaged in lethal behavior, the public reaction is to ponder the effects of the cycle of violence, examine the root causes of the pain in these children’s lives, and look for modes of rehabilitation. The manner in which juvenile crime has been handled by the media displays the sharp contrast between how white youth and youth of color are perceived by the American public. Most significant in this discussion of the media’s contribution to the myth that race and culpability are “connected” is the use of language and visual images that associate innate violent behavior with “blackness.” Recently, when several teen-aged white males were arrested for the murder of schoolmates and teachers, newspapers and national magazines described the boys as “quintessentially American,” using such language as “skinny,” “slight,” “freckle-faced,” and “intelligent but isolated.” None of the national coverage referred to these youth as “superpredators,” “maggots,” or “animals”—language that is often used when the perpetrator of a violent crime of this nature is African American or Latino.7 Many young black and Hispanic youth internalize these negative views, causing them to develop the worst aspects of their character. In 1902, the famed author H. C. Cooley coined the term “looking glass self,” which means that our idea of who we are is largely determined by the way that others relate to us. Thus, when members of a minority group are treated as inferior or inhumane, it subsequently affects how that minority group views itself. For many inner-city youth, being viewed as useless “predators” has become a self-fulfilling prophecy, resulting in murder and incarceration. Contrary to public policy, healthy rehabilitation cannot occur in detention. The success of our youth depends on our ability to assist them in developing a positive outlook of their contribution to the world. The most effective vehicle for rehabilitation is through community-based, holistic empowerment programs. These programs focus on the major areas of a young person’s development. Holistic empowerment programs have been effective in meeting the needs of high-risk and delinquent youth. One of the keys to this multisystems approach is its emphasis on promoting behavioral change in the youth’s natural environment. The structure comprises a network of community resources and programs that embrace the needs of the youth and his or her family from all angles. According to the Family Services Research Center, “Individuals are nested within a complex of interconnected systems that encompass individual family and extra familial (peer, school) factors; and intervention may be necessary in any one or a combination of these systems.”8 The holistic empowerment model has three major components that work together to address the needs of youth: 1) life skills training, youth development workshops, and counseling; 2) community partnerships; and 3) mentoring.

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Life skills training and counseling have shown promising results when used in conjunction with the second and third components—community partnership and mentoring. In addition, workshops focused on issues such as self-awareness and civic competency help youth to begin building a clear understanding of who they are in relation to their individual communities and the larger society. Community organizations like the Youth Empowerment Mission and the Madison Square Boys & Girls Club run sessions that engage youth and teach them through hands-on work. These sessions foster positive self-esteem and teach youth basic leadership skills. For example, the civic competency workshop teaches youth how to respect and value individual civil and human rights. Youth are encouraged to express these rights by participating in the governmental process via activities such as voter registration drives and lobbying efforts. These activities instill the belief that youth can make a difference and that they are an integral part of our society. Accordingly, the life skills training and workshops are essential to the development of youth of color. The second component, community partnerships, is composed of the active involvement of faith-based institutions (i.e., churches, mosques, etc.), schools, community agencies, law enforcement, social agencies, businesses, cultural programs, and families. These key institutions provide youth with the training ground and support needed to learn how to access community resources. Youth learn life skills necessary to function productively within a community setting. In addition, youth are provided with educational and employment training and opportunities. Faith-based institutions are often the centerpiece of this process. They offer community meeting space, neighborhood cleanups, and community activities. Community businesses also contribute by providing vocational training, summer internships, job placements, and financial support to youth programs. Members of law enforcement also have a pivotal role in this process. To bridge a positive understanding between youth and the law, officers and court officials provide their services through mentoring, volunteering, and providing workshops that educate youth in the law and their rights as citizens. Cultural community organizations teach youth of color about their rich ancestry. Many of these organizations conduct rites of passage with high-risk youth. Rite-of-passage ceremonies are particularly useful in helping African American youth understand their African heritage and their role in the community, and participating in this process is an accomplishment that signifies their coming of age. Through community partnerships, solid foundations are formed between institutions and youth. Youth who once were distrustful of society and lacking confidence in their abilities can use these partnerships to come face to face with community leaders, police officers, businesses, and faith-based institutions as partners, not as victims. Me Adopt a School Program, which connects schools with businesses, churches, and social agencies, serves as a powerful example of successful community partnerships. Mentoring has had a significant effect on the lives of African American youth by providing one-on-one relationships between youth and positive adults. It offers youth access to people who can provide guidance, friendship, and positive role modeling. Studies by the New York Volunteer for Youth Campaign have shown that over

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80 percent of the youth involved in mentoring stay out of trouble, do better in school, and have a better outlook on their life. There is nothing magical about holistic empowerment. With dedication, it can successfully be organized in most communities. For youth exposed to negativity in their community—and thereby labeled as “criminals”—it is a structure that can lead to self-improvement and success. Its objectives are not to set unrealistic aspirations but to assist each youth in setting his or her own goals and in realizing his or her power to face adversity affirmatively and with critical thinking. These goals can only be accomplished by giving these youth a steady and fair starting ground. We cannot afford to continue spinning our wheels while our youth fall through the cracks, not can we sit idly by while others stereotype and criminalize our youth. Holistic youth empowerment programs offer a comprehensive and powerful remedy by which to cure the plague of violence that is affecting our youth. Through this process, our youth will discover their full potential and become the productive citizens they always could be. The sky should be the limit for out youth, not the criminal justice system. NOTES 1. Barry Feld, Bad Kids: Race and the Transformation of the Juvenile Court (New York: Oxford University Press, 1999), 149. 2. George Bridges and Sara Steen, “Racial Disparities in Official Assessments of Juvenile Offenders: Attributional Stereotypes as Mediating Mechanism,” American Sociological Review 63 (August 1998): 554–70. 3. David Cole, No Equal Justice: Race and Class in the American Criminal Justice System (New York: New Press, 1999), 170. 4. Arthur L. Burnett, “Permeation of Race, National Origin and Gender Issues from Initial Law Enforcement Contact through Sentencing: The Need for Sensitivity, Egalitarianism and Vigilance in the Criminal Justice System,” American Criminal Law Review 31 (1994): 1153–75. 5. Randall Kennedy, Race, Crime, and the Law (New York: Pantheon, 1997), 141. 6. Cole, No Equal Justice, 48–49. 7. Zachary Dowdy, “Racial Bias in Coverage by Media of Kids Who Kill,” Boston Globe (1998). 8. Family Services Research Center. Multisystemic Therapy Using Home-Based Services: A Clinically Effective and Cost-Effective Strategy for Treating Serious Clinical Problems in Youth (Charleston: Medical University of South Carolina, Department of Psychiatry and Behavioral Sciences, 1995).

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CRIME PREVENTION IN THE AFRICAN AMERICAN COMMUNITY: LESSONS LEARNED FROM THE NATION OF ISLAM Shaun L. Gabbidon

Since the founding of the Nation of Islam in the 1930s, crime prevention and rehabilitation have been two of its primary aims. From reforming street criminals and convicts to its forays into private security and the transformative effects of the Million Man March, we can learn much from the numerous efforts by the Nation of Islam to prevent crime in the African American community. With its earliest attempts, the organization cemented an impression that it refused to give up on those African Americans at the lowest rungs of society. As such, the Nation of Islam was able to show that everyone is salvageable. The formula was simple: Teach individuals about themselves, give them work opportunities, and continue to nourish their development physically, mentally, and spiritually. Although the successes and failures of the organization were consistently noted in magazine and newspaper accounts,1 few social scientists considered the Nation’s efforts worthy of scholarly examination. This chapter reviews the few studies that social scientists have undertaken over the several decades of crime prevention efforts by the Nation of Islam and also examines the organization’s foray into private security and the potential crime prevention effects of the Million Man March. The objective is to review the history, experience, successes, failures, and lessons learned from the Nation of Islam’s attempts at crime prevention in the African American community. EARLY GOALS Since the beginning of the twentieth century, one of the more interesting and controversial groups within the African American community has been the Nation of

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Islam. Founded in the 1930s by Wallace Fard Muhammad, and later popularized by Elijah Muhammad and Malcolm X, the group’s religious foundations are in Islam.2 According to Edward Curtis in Islam in Black America, “Elijah Muhammad viewed Islam as a religious alternative to Christianity that fostered a positive sense of black pride and advanced the fight for black liberation” (2002, 63). From the outset, the group has sought to reduce the involvement of African Americans in various vices by moving individuals toward self-sufficiency. In its first three years, the organization built a temple and started an elementary and middle school. It also founded a military branch, Fruit of Islam, to protect against what C.E. Lincoln calls the “unbelievers, especially the police” in his book The Black Muslims in America.3 During the early years, “there [were] no idle Muslims, and delinquency, juvenile or adult, [was] almost unheard of,” Lincoln writes, and the organization began to flourish, even though many of the followers were “ex-convicts—or even convicts.” He continues, “Some temples are behind prison walls. Some have come into the movement as dope addicts and alcoholics or from careers as pimps, prostitutes, pool sharks, or gamblers.”4 The Nation of Islam is proud of its early history. Its current leader, Louis Farrakhan, has continued the “open door” policy regarding the downtrodden in the black community and has stayed the course regarding the Nation’s ideology of selfhelp.5 Although Farrakhan has caused controversy at times over politics or finances, nobody has challenged keeping up with these original philosophies. REFORMING STREET CRIMINALS, PRISONERS, AND EX-CONVICTS The Nation of Islam has always appealed to the most downtrodden groups of the African American community and, as such, has traditionally drawn many of its followers from these ranks. Lincoln documents how Elijah Muhammad created a mass movement that, at its height, was successful in recruiting the “lumpen-proletariat” of the African American community.6 This was something other African American organizations (i.e., the National Association for the Advancement of Colored People) had traditionally been unable to do. Notably, Muhammad targeted a newspaper column, “Muhammad Speaks,” at this segment of the African American community.7 Although Islam lies at the core of the self-improvement program, the transformation from criminal activity to productivity also involves a secular process of moving a person from self-hate to self-respect.8 Muhammad’s message of Black Nationalism appealed not only to those on the streets but also to those already incarcerated. He was intent on not giving up on those who were already forsaken by most of society. During the 1950s and 1960s, “they had some impressive successes in rehabilitating certain categories of social outcasts, including drug addicts and alcoholics,” Lincoln writes.9 The most famous of these converts was Malcolm X, who was in turn instrumental in increasing the number of followers.10 As more African American prisoners began to join the Nation of Islam in the late 1950s, correctional officers perceived Black Muslims, as they were referred to then, as a management problem.11 As a result, these new converts were initially isolated and moved from institution to institution. Eventually, they were also considered dangerous and thought to provoke violence within institutions. Many did have violent

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tendencies; however, once they entered the organization, a substantial portion responded with violence only if placed in a violent situation.12 In the 1970s, A.D. Sullivan conducted a study on the effect of the Nation of Islam in prisons—one of the few studies conducted to date. The data, collected from 200 inmates in the Philadelphia area, showed that those inmates who highly identified with the Nation of Islam had attitudes and behavior patterns that were more affable than antisocial.13 In the 1980s, the Nation of Islam created a “Prison Reform Ministry” with “the goal of transforming the convicts into law-abiding, disciplined, and productive men.”14 When an offender is released, this program ensures that he has somewhere to work and ample activities to keep himself busy. The importance of work in this equation cannot be overstated. These individuals would have struggled to become productive members of society after being released from prison; however, the Nation of Islam saw that reducing the likelihood of recidivism was tied to work opportunities; the Nation has received numerous awards for its efforts in this area.15 In the 1990s, Farrakhan continued to reach out to the downtrodden, now including those in gangs and those who identified with the violent aspects of hip hop culture. In his book, In the Name of Elijah Muhammad: Louis Farrakhan and the Nation of Islam, Mattias Gardell traces the Nation of Islam’s appeal to these groups to Farrakhan’s “Stop the Killing” lecture tour in the late 1980s. Farrakhan spoke to innercity gang members, was a featured guest at gang summits, and was also instrumental in regional Los Angeles and Chicago gang ceasefires, beginning in 1992. Rappers such as Ice Cube and Public Enemy further espoused the Nation of Islam’s ideas.16 THE NATION OF ISLAM SECURITY AGENCY Malcolm X was prophetic when he noted: We [the Nation of Islam] don’t have any delinquency, either juvenile or adult, and if Mr. Muhammad is given a chance he will clean up the slums and the ghettos— something all the leaders and the social workers and police put together have been unable to do.17

Just as the Nation of Islam has succeeded where others failed in reaching troubled segments of the African American population, the Nation of Islam Security Agency has been able to bring calm to public housing developments that no other security agencies could tame. Similar to many of the initiatives the Nation of Islam has undertaken over the years, its venture into private security came out of necessity. In 1988, the Mayfair Mansions apartment complex in Washington, DC, was overrun by drug trafficking, and the Nation of Islam offered its assistance. In a highly publicized encounter, Nation of Islam members confronted drug dealers, leading to a physical altercation between the two groups. Although there were mixed feelings within the community about the use of violence by Nation of Islam members, there were few residents who were unhappy with the outcome: the removal of drug dealers from the housing development. In fact, after the initial altercation, approximately fifty residents marched in support of the Nation of Islam.18

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Following the incident, the Nation of Islam started referring to their personnel as Dope Busters, and the organization began to receive national attention because of its efforts in crime-ridden communities. In 1988, the group incorporated the Nation of Islam Security Agency (NOISA). As outlined in its 1995 Nation of Islam Security Agency Brochure, the agency’s efforts included the use of a five-point social program: 1. Weekly on-site video presentations shown to expose the youth and the com munity to positive role models and to continually reinforce the practice of positive social behavior. 2. Door-to-door awareness visitations for residents to become familiar with NOISA and share with the agency the vision of a safe and nurturing commu nity. NOISA sees itself as an active part of the community that it is dutybound to protect. It is vital that the community recognize NOISA as a friend and partner rather than just another security firm. 3. Weekly manhood/womanhood training programs designed to heighten selfesteem and self-respect. In an atmosphere of self-love it becomes easy to nur ture respect and responsibility. 4. Monthly field trips for youth to historical and educational sites, designed to broaden their horizons and to show them that someone genuinely cares for them. 5. On-site athletic tournaments, games, and diverse activities for teens and other concerned adults.19 Using this program as its model, NOISA employed several hundred people at its height and worked with affiliated companies in numerous cities throughout the United States. Although the agency successfully provided services to numerous public and private entities, it was its work in residential communities of color that garnered the most attention. A wide variety of publications wrote about the security agency, including the New York Times, Ebony, the Washington Post, and U.S. News & World Report.20 Only two scholarly works examined NOISA’s work, however. One study, by the Chicago Housing Authority’s Anti-Drug Initiative in the 1980s, was led by J. Popkin and was published as “Combating Crime in Public Housing: A Qualitative and Quantitative Longitudinal Analysis of the Chicago Housing Authority’s Anti-Drug Initiative” in Justice Quarterly.21 The other, led by this author, analyzed NOISA’s performance in Baltimore high-rise public housing developments in 1999 and was published as “The Nation of Islam Security Agency, Inc.: A Model for Public Housing Crime Prevention?” in the Journal of Security Administration.22 THE CHICAGO EXPERIENCE As part of a larger study of the Chicago Housing Authority’s Anti-Drug Initiative in the 1990s, Popkin’s study provides a brief discussion of the effectiveness of contract security guards. These guards were used because Housing Authority officials were unable to hire enough in-house security officers who met the requirements of having

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a high school diploma and passing a drug test. During the mid-1990s, the Housing Authority hired an average of 800 to 900 guards through private security firms, at a cost of $25 million annually. The guards were paid $5 to $6 an hour, received only 20 hours of training, and were not screened for drug use.23 One of those private security companies, the New Life Self-Development Company, was affiliated with the Nation of Islam. “The major distinction between New Life guards (most of whom were not themselves members of the Nation of Islam) and other contract guards was that New Life guards neither carried weapons nor wore uniforms,” Popkin et al. wrote.24 Given the conditions under which they were hired, the guards were, to say the least, ineffective. Nevertheless, they placed themselves daily in extremely dangerous situations, and several security guards were killed in the developments. As a result of their bravery, even with their failures, they gained the respect of the community; something previous security providers were unable to accomplish.25 THE BALTIMORE CITY EXPERIENCE Using a combination of focus group interviews and an analysis of arrest statistics, my fellow researchers, Fred Cheesman, Evelyn Brown, Neil Green, Felicia Hobbs, Lethia Jeffereson, and I conducted an assessment of NOISA in four Baltimore high-rise public housing developments in 1999. The focus group participants chronicled a long history of problems with security. They also detailed the various unsuccessful approaches that the housing authority had tried before hiring NOISA. Some residents who had lived in the developments when they were first built in the 1950s recalled that the complexes were once fairly safe. They discussed the progressive deterioration, which culminated with a virtual takeover by drug dealers by the mid1980s. The residents spoke passionately about the 1986 creation of the housing authority police and their hope that the force would solve the crime problem. However, not only did crime not subside but residents were also frequently treated with disrespect by the new police force. After a long list of initiatives, the housing authority hired the Nation of Islam Security Agency in 1993.26 The residents spoke glowingly about the firm, reporting, “They were like family,” and “They treated us like human beings.”27 The residents also noted that the drug dealers respected NOISA. After some initial tough confrontations, drug dealers were unwilling to challenge them—something that they had repeatedly done with previous security providers and with the housing authority police. As a result, the residents felt safer than they had in years. They had been previously unwilling to let their children go out and play, but once the Nation of Islam Security Agency took over, they had less apprehension about doing this. The residents also noted that NOISA did more than just provide security for the developments. It also ensured that the buildings were trash free and helped residents with minor tasks (e.g., carrying groceries). This showed a level of care not evidenced by prior security providers.28 In addition to the information gleaned from focus groups, quarterly arrest statistics for both Part I (more serious offenses) and Part II (minor sex offenses and common assaults) offenses showed improvement. Tables 27.1 through 27.4 highlight

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these changes. In looking at the seven quarters before and the seven quarters after the hiring of NOISA, we found decreases in Part I offenses in three of the four high-rise developments following the hiring of NOISA. The reductions were dramatic, with three of the four developments showing statistically significant reductions. Contrary to the overall trend, however, in one development there was an increase in crime.29 A review of Part II offenses revealed a similar pattern of a decrease in crime. In three of the four developments, Part II offenses went down. In the fourth development, however, Part II offenses went up. To explain the increases in crime in the one development in contrast to the successes in the other, we noted that although there could have been some crime displacement, there was no conclusive evidence that this had occurred.30 HOUSING AND URBAN DEVELOPMENT STEPS IN When NOISA began to receive high-profile contracts in public housing developments throughout the country, several concerns surfaced from legislators and from Jewish organizations31 that questioned the appropriateness of federal government funding being used for an agency affiliated with Louis Farrakhan’s Nation of Islam. The first concern was that guards were proselytizing on the premises they patrolled. The second was that NOISA discriminated by not hiring whites or women as security guards. The third was that federal funds were being indirectly channeled to the Nation of Islam, whose leader, Louis Farrakhan, was perceived to be anti-Semitic. The fourth was that some of the guards had felony criminal records. All of these concerns crystallized in 1995 when Rep. Pete King (R-NY) and Sen. Bob Dole (R-KS) called for hearings to investigate these matters. The federal Housing and Urban Development office began an evaluation of NOISA’s efforts in public housing and surveyed residents from around the country on their satisfaction with NOISA services. Over the course of a month and a half, seventy-five Housing and Urban Development staffers from Washington, DC, and field offices in seven other cities conducted on-site interviews where the Nation of Islam-affiliated security companies worked. The investigation yielded more than a thousand interviews with tenant leaders, residents, and local housing officials.32 In Baltimore, the interviewers spoke with more than 270 residents who reported favorably on the guards, noting that they were effective in making the community safe, clean, and vandalism free. NOISA’s efforts were also believed to contribute to low vacancy rates in the developments.33 In Chicago, Housing and Urban Development surveyed residents about NOISA’s affiliate, the New Life SelfDevelopment Company. The interviewers spoke to seventy-five residents, but because of safety concerns, they were unable to access some areas. There was evidence that the company had initially sold bean pies and newspapers, but that activity had ceased long before the investigators arrived. In line with the findings of Popkin et al., the guards were not deemed particularly effective; however, they were considered more respectful and reliable than previous security providers.34 The investigators did find many links between the Nation of Islam and the Nation of Islam Community Support Group that was hired to reduce drug activity

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in the Dayton Metropolitan Housing Authority. All of these links were legal, however, and did not violate the separation of church and state. Though the Support Group was supposed to hold manhood, womanhood, and self-esteem training sessions, they never materialized with the frequency with which they were promised. The residents were satisfied with the sessions that were held.35 In Brooklyn, Housing and Urban Development interviewed housing staff and sixty-three residents about the XMen Security Force hired in a public housing development. The sessions revealed that the residents rated the security force good to excellent, with most stating that crime was rampant in the area before the force was hired.36 One resident noted, “The old guards had guns but couldn’t control the buildings. These new guards don’t have weapons and have much better control.” More than 75 percent of the 360 residents signed a petition to keep X-Men as the security force. Another important point made was that while X-Men Security was on the premises, the vacancy rate in the development dropped from 30 percent to 1 percent. X-Men Security also had a contract with the Waterfront and Shoreline housing developments in Buffalo, New York, and Housing and Urban Development staff conducted on-site interviews there. The sentiments expressed by eighty-nine residents of diverse racial backgrounds and staff were all positive. Again, X-Men reduced crime where armed security providers could not claim similar success. The residents reported that the guards had spoken with them about the Nation of Islam; however, they also noted that, in most instances, the residents started the conversations. On several occasions, residents observed guards distributing the Nation of Islam newspaper, The Final Call. Nevertheless, because of the efforts of X-Men, Housing and Urban Development staff members concluded that “elderly residents [mostly white] now feel secure enough to come out of their apartments to socialize with each other more and use laundry facilities during evening hours.” These same residents applauded the guards for their courtesy and willingness to go above and beyond previous security providers.37 In Washington, DC, NOISA provided services in three housing developments. The interviewers spoke to a total of 223 residents, most of whom had high praise for the agency. As noted earlier, it was in these developments that the agency was first founded. The only problems reported in any of the developments related to visibility and the residents’ desire that the agency maintain strict access control.38 The final two developments visited by Housing and Urban Development representatives were in Pennsylvania. Although the results of the interviews of the 116 residents in Pennsylvania were similar in tone to the ones from previously discussed developments, there was evidence that the guards had spoken about religion and invited residents to visit Nation of Islam mosques early in the process. In addition, at one site, the effectiveness of the agency had waned to the point where the developments were seeking bids for armed guards.39 The government concluded its hearings on March 2, 1995, and vindicated the NOISA of all charges. However, because of the controversy, the organization did lose some business around the country.

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THE MILLION MAN MARCH Though not often viewed in this light, the Million Man March must be seen for its ongoing crime prevention potential in the African American community. The march, whose objective was to get African American men to atone for past detrimental behavior, brought 7 percent of the entire African American male population to Washington, DC, on October 16, 1995. Many of the march’s pledge tenets speak directly to preventing violence, domestic abuse, child abuse, and drug addiction: Tenet 4: I pledge that from this day forward I will never raise my hand with a knife or a gun to beat, cut, or shoot any human being except in self-defense. Tenet 5: I pledge from this day forward I will never abuse my wife by striking her or disrespecting her, for she is the mother of my children and the producer of my future. Tenet 6: I pledge from this day forward I will never engage in the abuse of children, little boys or little girls, for sexual gratification; I will let them grow in peace to be strong men and women for the future of our people. Tenet 7: I pledge this day forward that I will not poison my body with drugs or that which is destructive to my health and well-being.

Nevertheless, no scholars have examined this event for its long-term effects on crime. For several years after the march, newspapers and magazines sought to highlight what steps march participants had taken following the event. These media outlets found that march participants had become more active in the voting process, with one source stating that there was a 50 percent increase in voting by African American men in the year following the march.40 Numerous march participants also were found to have organized clean ups,41 started or signed up for mentoring programs,42 or changed occupations to fields more relevant to bettering the African American community.43 In a study that I conducted with a team of researchers to directly examine the effect of the march on forty male African American college students at an historically black college, we measured whether participants were living up to the pledge. In areas related to violence, resolving disputes, and community involvement, most of the participants indicated that they were still living up to the tenets. Participants also indicated that, more than ever, they were committed to creating or being heavily involved in programs meant to uplift the African American community.44 As more time has passed since the march, scholars see the event as being less related to any changes in the African American community. However, there is a fallacy in this thinking. In fact, the more time that passes, the more we should see results from the activities the march sustained.45 This brief review of the Million Man March indicates that scholars need to do more to assess its influence on the crime dip of the 1990s.46 The crime reduction may have started before the year of the march, but it may have been sustained in the African American community partly as a result of it. CRIME PREVENTION LESSONS FROM THE NATION OF ISLAM Much can be learned from the numerous efforts by the Nation of Islam to prevent crime in the African American community. One overwhelming lesson from the

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Security Agency is that carrying weapons does not always translate into effectiveness. Though NOISA often replaced armed guards, in most instances they proved to be more effective without weapons. Why? Perhaps they got more respect and trust than previous security providers and law enforcement agencies because of their affiliation with the Nation of Islam. Perhaps drug dealers and criminals were scared of NOISA because early scuffles with the organization let criminals know that illegal activities would not be tolerated. Similar approaches and clashes to what transpired in Baltimore after the founding of the NOISA by law enforcement officials would have raised eyebrows in the community. Residents of public housing developments readily acknowledged that NOISA was more than an ordinary security provider: Regular security providers didn’t clean up the buildings, help residents with groceries, provide positive encouragement to the youth, and willingly serve as positive role models. As a result, NOISA received the benefit of the doubt when it was involved in incidents, where previous security providers had not. The Million Man March showed that black men could come together for a common cause. The primary lesson from the event was that there are plenty of African American males who are willing and able to do what is necessary to uplift their communities. Before the march, there was an overwhelming sense that African American males were a problems in society and that few of them were involved in positive activities. The marchers and their initial and continuing postmarch activities showed that this was a false notion. The African American community continues to reap benefits from activities spurred by the march and its participants. As with all public and private crime prevention efforts, there are problems and shortcomings to the Nation of Islam’s programs. Beginning with the public split between Malcolm X and Elijah Muhammad, the Nation of Islam, similar to other religious organizations, has been plagued by scandal and financial mismanagement.47 These incidents, however, have not precluded the organization from continuing to try to make a difference in the African American community. In terms of crime prevention, the Nation of Islam has stepped in where needed and, in the process, created opportunities for African Americans who could easily have drifted into, or returned to, criminal activities. It remains hard to put a number or figure on the number of lives saved and justice expenditures not spent because of the Nation’s efforts; one thing, however, is clear—it continues to be a noticeable and generally positive presence within the African American community. NOTES 1. For an overview of literature about the Nation of Islam Security Agency, see Ebony (August 1989); William K. Stevens, “Muslims Keep Lid on Drugs in Capital,” New York Times, September 26, 1988; Kenneth T. Walsh, Ronald A. Taylor and Ted Gest, “The New Drug Vigilantes,” U.S. News & World Report (May 1988); Nathan McCall, “D.C. Council Votes to Praise Farrakhan’s Anti-Drug Work,” The Washington Post, October 25, 1989; Ken Ellingwood, “Patrols by Nation of Islam Cut Violence,” Los Angeles Times, December 27, 1992; James Popkin, “Propagandists or Saviors? How Guard Firms Tied to the Nation of Islam Operate,” U.S. News & World Report, September 12, 1994.

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2. Edward E. Curtis, Islam in Black America (Albany: State University of New York Press, 2002). 3. C. Eric Lincoln, The Black Muslims in America, 3rd ed. (Trenton, NJ: Africa World Press, 1994), 14. Originally published, 1961. 4. Lincoln, The Black Muslims, 24. 5. Louis Farrakhan, Torchlight for America (Chicago: FCN, 1993). 6. Lincoln, The Black Muslims, 107. 7. Ibid., 110. 8. Mattias Gardell, In the Name of Elijah Muhammad: Louis Farrakhan and the Nation of Islam (Durham, NC: Duke University Press, 1996). 9. Lincoln, The Black Muslims, 107. 10. Malcolm X, with Alex Haley, The Autobiography of Malcolm X (New York: Grove Press, 1964). 11. Darlene J. Conley and Julius Debro, “Black Muslims in California Prisons: The Beginning of a Social Movement for Black Prisoners in the United States,” in Race, Class, Gender and Justice in the United States: A Text-Reader, ed. Shaun L. Gabbidon, 278–91 (Boston: Allyn and Bacon, 2002). 12. Ibid. 13. Andrea D. Sullivan, Politicization: The Effect of the Nation of Islam Upon the Prison Inmate Culture (unpublished PhD diss., University of Pennsylvania, 1976). 14. Gardell, In the Name of Elijah Muhammad, 306. 15. Ibid., 307. 16. Ibid., 297. 17. Lincoln, The Black Muslims, 109–10. 18. Patrice Gaines-Carter and Sari Horwitz, “Drug Patrol Turns Violent: Muslims Beat Man in NE Narcotics Market,” The Washington Post, April 19, 1988, pp. A1, A12. 19. Nation of Islam Security Agency Brochure (Washington, DC: Nation of Islam Security Agency, 1995). 20. Please see Note 1. 21. Gaines-Carter and Horwitz, pp. A1, A12. 22. Shaun Gabbidon, Fred Cheesman, Evelyn Brown, Neil Green, Felicia Hobbs, and Lethia Jefferson, “The Nation of Islam Security Agency, Inc.: A Model for Public Housing Crime Prevention?” Journal of Security Administration 22, no. 1 (Spring 1999): 15–26. 23. Popkin, “Propagandists or Saviors?,” 531. 24. Ibid. 25. Ibid. 26. Gabbidon et al., “The Nation of Islam,” 16. 27. Ibid., 20. 28. Ibid. 29. Ibid., 21. 30. Ibid., 23. 31. Anti-Defamation League, “Federal Funds for NOI Security Firms: Financing Farrakhan’s Ministry of Hate,” in Anti-Defamation League Fact Finding Report 1995 (New York: Anti-Defamation League, 1995). 32. Congressional Hearing, “Security Contracts Between HUD or HUD Affiliated Entities and Companies Affiliated with the Nation of Islam,” Serial No. 104–7 (Washington, DC: GPO, 1995). 33. Ibid.

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34. 35. 36. 37. 38. 39. 40. 41.

42.

43. 44. 45. 46. 47.

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Ibid., 109. Ibid., 111. Ibid., 112. Ibid., 113. Ibid., 113–15. Ibid., 116–17. Rafael Alvarez, “Activists to Mark Million Man March Anniversary Locally,” The Sun, October 16, 1996, p. 3B.54 _Souls Winter 2004. See Ellis Close, “Watch What They Do,” Newsweek, October 7, 1996, pp. 62–63; and Jim Haner, “Red Tape Litters Effort to Clean Blighted Alley,” The Sun, October 10, 1998, p. 6A. Close, “Watch What They Do,” 1996; See also Shaun L. Gabbidon, “AfricanAmerican Male College Students After the Million Man March: An Exploratory Study,” Journal of African American Men (Winter 2000): 15–26; and John Leland and Vern Smith, “Marching into Macon,” Newsweek, October 7, 1996, pp. 63–64. Alvarez, “Activists to Mark.” Gabbidon et al., “The Nation of Islam,” 19. Ibid. Alfred Blumstein and Joel Wallman, eds., The Crime Drop in America (Cambridge: Cambridge University Press, 2000). Sonsyrea Tate, Little X: Growing Up in the Nation of Islam (San Francisco: HarperSan Francisco, 1997); Vibert L. White, Inside the Nation of Islam: A Historical and Personal testimony by a Black Muslim (Gainesville: University of Florida Press, 2001).

Table 27.1 Quarterly Arrest Statistics for Lafayette Courts Housing Project in Baltimore

Year Before Year After % Change Total Before Total After % Change

Part 1 Offenses

Part 2 Offenses

156.9% 100.9% –35.9% 308.9% 179.9% –41.9%

109.9% 81.9% –25.7% 204.9% 134.9% –34.3%

Table 27.2 Quarterly Arrest Statistics for Lexington Terracy Housing Project in Baltimore

Year Before Year After % Change Total before Total After % Change

Part 1 Offenses

Part 2 Offenses

96.9% 43.9% –55.2% 214.9% 74.9% –65.4%

50.9% 16.9% –68%.9 119.9% 36.9% –69.7%

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Table 27.3 Quarterly Arrest Statistics for Flag House Housing Project in Baltimore

Year Before Year After % Change Total Before Total After % Change

Part 1 Offenses

Part 2 Offenses

91.9% 32.9% –64.8% 124.9% 51.9% –58.9%

34.9% 34.9% 0.9% 56.9% 60.9% 7.1%

Table 27.4 Quarterly Arrest Statistics for Murphy Homes Housing Project in Baltimore Part 1 Offenses Year Before Year After % Change Total Before Total After % Change

Part 2 Offenses

98.9% 125.9% 27.5% 180.9% 221.9% 22.8%

58.9% 52.9% –10.3% 100.9% 95.9% –5.9%

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NEW YORK THEOLOGICAL SEMINARY PRISON PROGRAM: SING-SING CORRECTIONAL FACILITY OUR CONTEXT We are seventeen theology students who are currently in exile within the bowels of a New York State prison. Mostly from the five boroughs of New York City, we are from various ethnic groups, mainly black and Latino. Our faith traditions are primarily Christianity and Islam. We are believers striving to live out our faith in all that we say and do each day. We were transferred to Sing-Sing Correctional Facility to study as a group toward a master’s degree in professional studies. There are seventy prisons in New York state and approximately 70,000 prisoners. According to the New York State Department of Correctional Services figures for 1995, the New York State prison population is made up of 85 percent blacks and Latinos, with 75 percent coming from the inner-city areas of New York City. On our release, 98 percent of us will return to our neighborhoods. It is clear that black and Latino communities are most affected by the policies of the criminal justice system, yet our communities have the least to say about what goes on in prison. Those establishing and enforcing criminal justice policies are seldom from our urban communities, and their policies are out of step with the needs of blacks and Latinos. The policymakers are commonly vociferous and consistently diligent with regard to their “tough on crime” stance, but they are eerily silent when it comes to the issues of poverty, education, housing, and health care for the marginalized. Correctional facilities have become big businesses. With 98 percent of state prisons located in rural Republican districts, the prison–industrial complex reflects the interests of those communities. It costs taxpayers approximately $30,000 a year to incarcerate a prisoner; in contrast, it costs $11,215 to send an undergraduate to the State University of New York for a year.1 Astonishingly, it costs $100,000 to build a single prison cell—more than the average college seat in our country—yet lawmakers would rather incarcerate than educate. The crime rate has actually declined, but they continue to build more prisons. As the educational system in our communities

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continues to deteriorate, prison construction escalates. The high school dropout rate is alarmingly high in our communities, yet educational budgets are slashed and remedial education is eliminated. There are cases of tenured college professors leaving their educational posts to become correctional officers because of the attractive salaries, job security, and insurance benefits. We are prepared to make the best of our time and the necessary adjustments for a successful reentry into society, but facing the parole board is like returning to court and having the judge sentence you again for the same crime. There is a double standard of justice and a double jeopardy in judgment. There is also a public outcry against the parole system. To listen only to government officials, one would conclude that most of the crimes committed in New York City are committed by individuals on parole. However, 1995 statistics compiled by the New York Police Department indicate that only 4.5 percent of crimes in the city were committed by parolees. Many of the churches and other faith communities in the black and Latino neighborhoods from which we have come have abandoned us. The silence of black and Latino Christian, Jewish, and Islamic congregations in urban communities makes them unwitting accomplices to the plight of prisoners. We feel trapped and cut off by a system that seems to have no capacity for love or compassion and that refuses to recognize that people can change. Increasingly, politicians and the media manipulate public sentiment toward vengefulness instead of redemption, and that makes the public slow to understand the social causes of wrong behavior. Prison: easy to get in and difficult to get out—even when you are eligible for parole. Prison is a branding method tantamount to modern slavery, and it totally rejects any possibility of rehabilitation. OUR FAITH REFLECTION Ours is a society that has grown increasingly unforgiving, disregarding the possibility of transformation and self-renewal of prisoners. But our faith tells us that we all are redeemable, that no matter how low we fall, we can rise again. Who can make judgments that anyone is beyond redemption? If Allah were to punish men for their wrong doing, He would not leave on the earth a single living creature. (Qur’an 16:61) Have you not known? Have you not heard? The Lord is the everlasting God, the Creator of the ends of the earth. He does not faint or grow weary; his understanding is unsearchable. He gives power to the faint, and strengthens the powerless. . . . Those who wait for the Lord shall renew their strength, they shall mount up with wings like eagles, they shall run and not be weary, they shall walk and not faint. (Isaiah 40:28–31)

As a consequence of our spiritual and mental transformation, we are remorseful about our crimes and the pain we have caused others. We have done wrong, and we apologize—but we need to be given a chance to make amends.

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We are redeemed, and we have turned our lives over to God. Our faith and practice afford us the opportunity to give back to our communities. Our commitment to change has been facilitated through the process of critical education, which has mobilized us toward liberation, redemption, empowerment, and transformation. This past year has been a life-transforming experience for us. Jeremiah 29:7 tells us to seek the shalom of the city of our exile, the welfare of the place in which we find ourselves. For us, now, that place is prison, and we are doing our best to enhance not only our own lives but the lives of others as well. So let us not grow weary in doing what is right, for we will reap at harvest time, if we do not give up. (Galatians 6:9)

OUR FUTURE WITH OUR COMMUNITIES We ask for the chance to show that we are not the same men who made the decisions that put us in prison. Don’t simply take our word for it. Give us the chance to demonstrate our transformation—and there are very specific ways that we can do so. For example, there are virtually no primary intervention mechanisms in place for inner-city youth. Youth are left to fend for themselves and are severely punished when they make wrong choices. We are qualified and eager to assist our youth. Most of us began our wayward and destructive paths as adolescents; now our skills and concerns enable us to be highly effective in helping youths. New York Theological Seminary Master’s in Professional Studies (NYTS/ MPS) alumni who have been released from prison have demonstrated success in this area. Most are employed in human services, and they have the lowest recidivism rate in the state. Our children and communities need us, and we stand ready to make a lifelong atonement to our communities. We only ask for the chance. Allah does not change the condition of a folk until they first change that which is in their hearts. (Qur’an 13:11)

We also want to speak to the people in our neighborhoods, especially in communities of faith, for the state of affairs within the black and Latino communities will never be corrected by those outside our communities. The question is, How do the people from our communities want prisoners to return to their communities? People in our communities who understand our experiences should be involved in the rehabilitative and transitional process of prisoners to help us become an asset to our communities on our return. Who benefits when uneducated men and women are released from prison? Only the prison–industrial complex, which is then assured of high rates of recidivism. The criminal justice system not only exploits us, the prisoners, but it equally exploits taxpayers. It is essential that we bridge the gap that alienates us from eachother. There should be a consistent interaction between prisoners and our faith communities: “I was in prison and you visited me” (Matthew 25:36). Such a relationship over time helps us grow spiritually and be part of a life-transforming process. There

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are some programs already in place, and we invite all who read this to participate. (If you would like to help, please contact NYTS or the prison facility nearest you.) Remember those who are in prison, as though you were in prison with them. (Hebrews 13:3)

Faith groups should be advocates for both interfaith and interdenominational activities in our communities, serving as “repairers of the breaches” (Isaiah 58:12) that keep us divided; interfaith collaboration, between Christians and Muslims, has worked within our group in prison, and it can work in our communities. A message needs to be sent to those in power to stop penalizing every prisoner for the criminal acts of a few parolees. We should be judged by what we have done to change our own lives, and we should be held accountable for only our own actions—not somebody else’s. As a measure to deter crime and to keep urban youth out of prison, adequate and effective education should be the focal point for government, churches, and recreation centers. Education builds a sound and safe society, whereas illiteracy contributes to the destruction of humanity, perpetuating the poverty that too easily leads to prison. We know firsthand the benefits of education and pledge ourselves to share those benefits both in prison and when we return to our communities. We ask in the Spirit of Righteousness and the One, True, and Living God that you take this chapter to heart, remembering always to consider the good that is inherent in all of creation and the struggle of the despised and imprisoned throughout our nation. Let us “believe and do good works, and exhort one another to truth and exhort one another to endurance” (Qur’an 103:3). Seek God’s Spirit and Righteousness with us in every endeavor. In the words of Amos, “Let justice roll down like waters, and righteousness like an ever-flowing stream” (Amos 5:24). Ja’Far Abbas Najee P. Angus New York Theological Seminary Prison Program James Baggett (Muhamn-ed) Joseph Benbow Woodrow Collins Jr. Anthony Culpepper George (Leo) Diaz Fermin Flores (Mateen) Patrick Flynn Melvin Isaac Lennard P. Joyner Michael J. Love Angel Rivera (Tee2) Alejo Dao ‘ud Rodriguez Joseph Ross (Tamir) Elroy Skeete Willis L. Steele Jr. Ossining, New York, May 1998

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NOTES 1. See “Unhealthy Choice: Prisons over Schools in New York State, How New York State Is Sacrificing Education for Incarceration,” a report by Alton R. Waldon Jr., New York state senator, Tenth District, April 1996, p. 6.

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WESLEY ROBERT WELLS AND THE CIVIL RIGHTS CONGRESS CAMPAIGN Theodore Hamm

During its short existence (1946–55), the Civil Rights Congress (CRC) focused much of its attention on the racist practices of the American criminal justice system. As Gerald Horne demonstrates, the CRC’s work in pub1icizing death penalty cases like those of Willie McGee, Rosa Lee Ingram, the Trenton 6, and the Martinsville 7 followed the grassroots tradition of protest established by the International Labor Defense on behalf of the Scottsboro Boys in the 1930s. To be sure, this continuity reflected the work of William L. Patterson, the African American Communist attorney who directed both organizations. Patterson’s signal contribution; namely, the use of mass popular pressure to supplement a legal strategy, clearly would be felt long after the demise of the International Labor Defense and the CRC, however. A case first taken up by the CRC, and later revived by the Black Panthers in the late 1960s, vividly illustrates the enduring potential of mass protest as the most effective means of combating racism in the criminal justice system. As seen in the following narration, neither courtroom activism nor executive goodwill would have saved Wesley Robert Wells from the California gas chamber or from a fate sometimes even more “cruel and unusual” than the death penalty. Nineteen-year-old Wesley Robert Wells arrived at San Quentin in 1928 from Los Angeles, charged with possession of stolen property. Initially sentenced for one to five years, Wells accrued a number of disciplinary infractions, causing him to be transferred to Folsom prison; there he was charged with manslaughter after killing another prisoner in a gang fight, and he was forced to remain at Folsom until 1941. Because his stretch proceeded the reform years of World War II, Wells left prison with no visible work skills and a criminal record. After a few months spent unemployed, living with his sister in Los Angeles, Wells was arrested for trying to steal a car battery and resentenced to Folsom. A 1944 confrontation with another prisoner brought Wells back to San Quentin, this time for five years to life. Reportedly subjected to persistent physical abuse and racial epithets from guards and other prisoners, Wells again

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proved to be a combative prisoner. In the aftermath of a 1947 disciplinary hearing, Wells threw an ashtray at a prison guard who taunted him, not seriously injuring the officer. In August 1947, Wells was sent to death row for violation of Section 4500 of the California Penal Code, which specified that a life-termer guilty of assault could be executed.l At the suggestion of San Francisco African American lawyer Cecil Poole, who eventually served as Governor Pat Brown’s clemency secretary, white radical attorney Charles Garry took up Wells’s case in late 1948. The future chief counsel of the Black Panthers, Garry at the time was affiliated with both the National Lawyers Guild and the CRC. With strong support from the CRC, Garry developed an initially successful legal strategy in defense of Wells. In essence, Garry disputed whether Wells’s sentence actually qualified as life, which was key to the Section 4500 definition. As a result of his personal contact with Wells, Garry also filed a 1950 suit charging Governor Earl Warren and the California Department of Corrections with discrimination against black prisoners at Folsom and San Quentin. With black prisoners forced, among other things, to “eat separately”, the suit argued that segregation inhibited “proper rehabilitation.” Garry’s twin legal strategies thus fulfilled an important antecedent to the arguments made by radical activists in the late 1960s. The indeterminate sentence, the Wells lawsuit suggested, was unduly manipulated by prison officials against a prisoner they did not like; racism, moreover, made rehabilitation a system flawed in practice. Effective only in gaining stays of execution, this legal campaign nonetheless anticipated the criticisms made by radical prison activists of the late1960s. In his 1978 memoir Streetfighter in the Courtroom, Garry thus called Wells the “first Black Panther.”2 Although the U.S. Supreme Court refused Wells’s appeal in late 1953 (rendering the legal campaign ultimately unsuccessful), the CRC had already launched an extensive publicity effort on his behalf, making Wells’s another in a series of death penalty cases taken up by the organization. Whether protesting the death penalty for rape, in cases such those of Willie McGee and the Martinsville 7, or contesting the disproportionate severity of the death sentence given to Rosa Lee Ingram, the Trenton 6, or Wells, the CRC tried to stir an international outcry to simultaneously bring justice to the particular prisoner and call attention to the wider issue of inequality in the U.S. justice system. In so doing, William Patterson believed, the CRC would gain organizational strength, and the larger Communist cause would acquire added legitimacy. With strong support from organized labor in California, the CRC orchestrated a publicity campaign that by March 1954 produced 50,000 signatures on petitions for Wells. If the campaign was less notable than some other CRC struggles, the eventual commutation of Wells’s sentence by Goodwin Knight proved to be one of the group’s most visible successes. Important here is the manner in which the CRC, left labor, and the prisoner himself waged the Wells defense.3 In an August 1952 letter, Wells thanked CRC executive secretary Ida Rothstein for the organization’s work on his case. “Friendless” and “penniless” on his arrival to death row in 1947, Wells hoped only to reach his fortieth birthday (in 1949)—a milestone no one in his family had yet accomplished. “Then, on January 2, 1950, when I had less than thirty days to live, I received a form from the Civil Rights Congress, pledging its assistance in the fight to save my life.” In its first press releases

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on the case, the CRC submitted a number of reasons why Wells should not be executed, most of which centered on his being “a Negro.” Other key points made by the CRC included the noncapital nature of Wells’s offense, the technical dispute over whether his was a life sentence, and the question of his “mental health”: “Wells is not a hardened, vicious criminal as Governor Warren implies,” declared CRC West Coast director Aubrey Grossman in late January 1950; instead, “he is a mentally sick man . . . [and] everyone knows that if Wells were a white man, with some friends in high places, things would be quite different.” Initially prominent, the emphasis on Wells’s mental condition faded over the next few years, whereas the emphasis on racial discrimination endured.4 After obtaining a stay of execution for Wells in 1950, the CRC proclaimed its success in slowing the pace of “legal lynchings,” such as “those of the Martinsville Seven in a Virginia, Willie McGee in Mississippi and Wesley Wells here in California.” In granting the stay, moreover, federal Judge Louis Goodman supported Garry’s contentions regarding the arbitrary use of the indeterminate Governor sentence against Wells. “By deliberate and designed inactivity,” Goodman observed, “the Adult Authority [parole board] of California kept the prisoner in an indefinite and indeterminate status for the purpose of making it possible to impose the death penalty on him in the event he committed an offense under Section 4500.” Designed to “destroy” someone regarded as an “undesirable citizen,” such “overzealousness” violated Wells’s right to due process under the Fourteenth Amendment, stated Goodman. The CRC, in turn, considered this treatment as representative of a larger pattern of “prison letter Jim Crow” endured by Wells during his more than twenty years of confinement. In September 1950, though, the California Supreme Court overturned the stay, causing Garry to appeal to the U.S. Supreme Court. In the meantime, the CRC stepped up its publicity campaign: “Like the Scottsboro Boys and Willie McGee,” a CRC fact sheet maintained, “Wesley Wells is a victim of a government policy that enforces second class citizenship on the Negro people. . . . We must not allow a California version of Mississippi injustice.”5 A CRC delegation brought Wells’s case before California Governor Earl Warren in October 1950. San Francisco CRC director Ida Rothstein chaired a group of fortyfive supporters from both southern and northern California, representing a cross-section of organizations; included among the ten people with whom Warren met were members of the San Francisco Interdenominational Ministerial Alliance and the International Longshoremen’s and Warehousemen’s Union (ILWU) and the CRC’s Rothstein, Marguerite Robinson, and Decca Truehaft. According to a CRC report, Rothstein led off by telling Warren the two reasons for the meeting: to save Wells’s life and obtain his release from prison and to demand the end of segregation at Folsom and San Quentin prisons. In the CRC’s account, Warren wanted to focus only on the former, and he repeatedly stressed his view of Wells as “a dangerous, bad man,” “a menace [who] cannot be out.” Calling it a “Communist Organization,” Warren said the CRC did not “care about Wells or Negroes” but used cases like this one “in order to sabotage our institutions and government.” Warren’s red-baiting continued after the meeting, when he told a news conference that “this Civil Rights Congress is Communist inspired and made its parade to Sacramento solely for a political purpose, to involve me in the racial discrimination question.” As for prison

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Jim Crow, though, Warren mostly sidestepped the issue, saying only that segregation was not official policy and that attempts to end de facto racial separation had resulted in “bloodshed.” Though he had become increasingly liberal on civil rights, Warren was up for reelection in November 1950, and he made his rejection of clemency for Wells part of a larger anti-Communist campaign.6 “Quentin Guards Break Up Killers’ Sit-Down Strike,” blared a San Francisco Chronicle lead headline on November 1, 1950. Calling the strike an “incipient riot,” the paper described how thirteen of the sixteen death row inmates had refused to return to their cell block after the exercise period. The protest lasted less than an hour, and the strikers’ demands were nothing more than new fountain pens, window screens (to keep birds out of their cells), lights on all night, longer exercise periods, and better food. The Chronicle said the “main instigator of the revolt was Wesley Robert Wells, 4l-year-old Los Angeles convict sentenced to death for assaulting an official at Folsom Prison.” Citing Warden Clinton T. Duffy, the story suggested Wells had “intimidated the other men and has them under his control.” There were the three other “ringleaders,” one of whom was Caryl Chessman. Along with Wells, Chessman and the two others were sent to solitary confinement for twenty-nine days. In the wake of the incident CRC fliers focused on the treatment of Wells, saying he had been beaten while in solitary and had been deprived of an attorney at the disciplinary hearing, For a brief moment, then, the two notable cases overlapped, and Wells urged Garry to attend Chessman’s December hearing for a writ of habeas corpus stemming from the response of prison officials to the “riot.”7 Whether as legal adviser or public relations strategist, Wells was indeed an active participant in all phases of the campaign against his execution. Initially, Wells sought to define himself as a product of a racist prison system. In a letter to CRC director Ida Rothstein on the eve of the meeting with Warren, Wells took issue with the governor’s views of him: “I really do not believe that I am the incorrigible, the anti-social, the mad killer that Governor Warren” portrayed. Wells later used the term “mad dog” in characterizing the official line. Still, “I make no pretension to having been a model prisoner during the many years I’ve spent in prison.” What made him “mean,” “hard,” or “even savage,” though, was the “brutal treatment I’ve received at the hands of both inmates and my prison keepers.” Labeling California prisons as a “system that considered the Negro [worth] less than dirt,” Wells further described several examples of racist mistreatment by prison officials. The CRC, in turn, published a pamphlet titled “My Name Is Wesley Robert Wells” in February 1951. In his foreword, Buddy Green of the Communist Daily People’s World called Wells a “strong, militant, unbreakable spirit . . . [whom] prison authorities are now trying put to death because they could not subdue his great courage and determination to fight against prison jimcrow.” Wells’s account addressed in detail all of the past charges against him and concluded by deeming the November “riot” a “designed act by the Warden calculated to embarrass and discredit my friends,” by which he meant primarily the CRC.8 Wells continued to elucidate the issues raised by his case throughout his correspondence with attorneys, CRC officials, and other supporters, causing the CRC to publish a sampling in 1953. Titled Letters from the Death House, the booklet tracked

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Wells’s intellectual progression from commentator on his own case to analyst of McCarthyite repression of labor, civil rights activists, and others deemed to be Communist sympathizers. In his preface, screenwriter John Howard Lawson, who had experienced the witch hunts firsthand, called Wells “a hero of our time, not because there is anything spectacular or unusual or ‘fictional’ in his courage, but because it so common, so rooted in the life and trials of his People, the vast and simple courage of those who hold the future in their hands.” Wells indeed seemed to acquire a heroic status among many of his supporters. As CRC leader Patterson told Ida Rothstein on the eve of a 1953 trip to California, “I should like nothing more than to have the opportunity of clasping Wells’[s] hand, Please try to make this possible.” After meeting Wells, Patterson described the experience in a letter distributed to editors around the country. “I shall never forget” the two hours spent with Wells, said Patterson; “he symbolizes for me the depthless spiritual strength of the Negro people.” Contrary to the cynicism regarding the CRC’s motives voiced by California public officials, Wells clearly inspired enduring passion for his cause.9 To turn the spark from the Wells campaign to into lasting benefit for the CRC, Patterson wanted the organization to take a cue from the “Negro church.” The church, Patterson explained in a letter to Rothstein, “involve[s] all of its members. It establishes all kinds of committees.” Such active participation could the CRC’s most effective recruiting tool, Patterson thought. Newcomers, he wrote, “will find in this involvement the first opportunity to express themselves as human beings.” In a pair of September 1953 letters to Patterson, Rothstein described the many different spheres of organizing on Wells’s behalf: Local 6 of the ILWU planned to circulate 20,000 copies of a leaflet about the case, the Fillmore (San Francisco) branch of the CRC had gathered more than 600 signatures from local black churches, CRC “brigades” continued distributing new handouts at churches and elsewhere, the local Labor School was preparing a skit based on Wells’s writings, letter-writing campaigns were underway, and organizational meetings brought together union committees with the various CRC chapters. CRC literature of the period compared the Wells “injustice” to those of Sacco and Vanzetti, Willie McGee, the Martinsville 7, and the Rosenbergs. As requested by Rothstein, Patterson made arrangements to get the CRC’s Rosenberg Committee mailing list to recruit likely supporters. In short, Wells’s case provided a catalyst for precisely the type of participatory campaign Patterson envisioned.10 A grassroots effort was solidly underway throughout late 1953 and 1954, and the roster of participating labor organizations proved quite extensive. Opposed to the anti-Communist leadership of the American Federation of Labor (AFL) and Congress of Industrial Organizations (CIO) in California, left-wing unions like the ILWU, the San Francisco Building and Construction Trades Council, and local branches of the United Automobile Workers (UAW) (including workers at the large General Motors plant in Los Angeles) enlisted their support. In promoting a September 1953 CRC conference, the Trade Union Committee for Wesley Robert Wells circulated a letter the prisoner had written to the Oil International Union in southern California. “Like the late Tom Mooney, whom I had the honor of knowing quite well during my early years in prison,” Wells wrote, “I am

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to be executed, liquidated, for the ‘crime’ of believing in and fighting” for what he believed in, in this case “racial equality.” In early 1954, the Wells Defense Committee distributed an editorial from Organized Labor, the newspaper of the Building Trades Council. The piece focused on Wells’s prison experience, offering no special explanation of why labor should be involved; that “those in positions of responsibility within the labor movement” needed to “speak out” indeed seemed a given. At a March 1954 conference, representatives of the Los Angeles Federation of Teachers, the fur workers, and other left unions joined the growing chorus in support of Wells. Whether spreading literature and petitions inside the workplace or reaching out to the public on the outside, the various labor committees formed an integral part of the campaign.11 The African American press likewise proved to be a constant source of pro-Wells opinion. Instrumental in personally recruiting some key supporters, Charlotta Bass ensured that the California Eagle would give full coverage to the case from 1950 onward; more mainstream competitors like the Los Angeles Herald and the Los Angeles Tribune climbed on board in late 1953, the latter admitting “We Were Wrong” about its initial reluctance to support Wells. Across the country black editors and columnists publicized the case, and a variety of defense committees often reprinted their columns. Pittsburgh Courier columnist J.A. Rogers, for example, kept readers posted about the controversy, at one point recording a donation made by Wells and eleven other death row inmates on behalf of the National Association for the Advancement of Colored People. Charlotta Workers Bass’s efforts extended beyond publishing sympathetic news stories and editorials in her newspaper, however. In early 1954, the Wesley Wells Defense Committee of Southern California, chaired by Bass, assembled a weekly newsletter called the Wesley Wells Defender. Usually four or five pages, the newsletter included updates, announcements for upcoming events, and stories such as one about the March 1954 formation of a youth division of the defense committee. An attentive, often active, participant, the African American press constituted a cornerstone of the Wells protests.12 A wide range of religious organizations also had joined the campaign by early 1954. Initial participants such as the San Francisco Baptist-led Interdenominational Alliance were now joined by an expanding number of Protestant and Jewish groups. As recorded in a February 1954 booklet published by the northern California–based Religious Committee for the Defense of Wesley Robert Wells, the Wells campaign enlisted the help of Baptist, Methodist, and Presbyterian ministers, as well as several Jewish leaders, from both ends of the state. After a March meeting, an organization of southern California Presbyterian churches sent Governor Knight a resolution stating, “As no capital crime is involved, the sentence of death is not morally justified.” Such qualified opposition to the death penalty contrasted with the views of the completely Quaker American Friends Service Committee (AFSC), which also voiced support for Wells. A March 1954 edition of the California Eagle cited letters to Knight from two AFSC members, one calling Wells’s sentence “cruel and unusual,” the other noting, “We find it difficult to believe . . . in California where the penal system has made so many advances, that a man can be executed for throwing a cuspidor [ashtray] at a prison guard.” Though playing a much smaller role than groups like the

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Interdenominational Alliance in publicizing Wells’s case, the AFSC would soon be at the forefront of the Chessman campaign.13 As a result of the work by the CRC, left unions, the black press, and various religious groups, a groundswell of opinion emerged in support of Wells, and by March 1954 the campaign would claim the support of significant numbers of middle-class professionals. Over 300 physicians, including the president of the California Medical Association, signed a letter sent to Knight in February 1954. In their statement the physicians particularly referred to the views of prison psychiatrists who had expressed sympathy for Wells. In statements excerpted in a number of CRC pamphlets, Folsom psychiatrist Burt Howard said the Wells he interviewed after the cuspidor incident was “not a ‘wild animal’ . . . but a real man, more sinned against than sinning.” Seeing Wells as a person able to “courageously resist ‘Jim Crow’” outside and especially inside prison, Howard stressed to Governor Knight that “racial hatred and legalistic red tape have robbed him of the consideration due a human being.” Similarly, Marcel Frym, a University of Southern California criminologist and member of Attorney General Pat Brown’s Advisory Committee for Crime Prevention, provided the foreground for the racial discrimination Wells had endured in prison: Wells’s “own individual psychopathology,” Frym informed Knight, was a result of “the not unjustified thought of being persecuted because of his race.” Such participation by professionals in the case became substantial enough for the Los Angeles Daily News to argue that “certainly such a wide diversity of groups and persons— criminologists, lawyers, church leaders and laymen—would not have been brought together” if “sufficient grounds” did not exist for Wells’s clemency. As evidenced by the views of the Democratic Daily News, the participation of professionals granted legitimacy to the campaign, allowing the mainstream press to minimize the work of left labor and the CRC.14 As the April 1954 execution date approached, the increased pace of protests began to have an effect. Syndicated columnist Walter Winchell, who had first endorsed clemency for Wells in 1950, encouraged readers to write to Knight; the governor, in turn, assured Winchell that he was taking all opinions into account. A delegation of state assembly members, led by black representatives Augustus Hawkins and Byron Rumford, brought Wells’s case before Governor Knight. Meanwhile, the San Francisco Chronicle, which earlier had portrayed Wells as the “ringleader” of an “incipient riot,” became an important convert. In a March 21 editorial, the paper nodded agreement with Judge Goodman’s interpretation of the misuse of the indeterminate sentence against Wells. Duly calling Wells a “bad man, unentitled to consideration on any sentimental score,” and taking a slap at “the Communists, ever eager for a ‘martyr’ to exploit for their own evil purposes,” the Chronicle nonetheless opposed the execution on the grounds of “simple justice.” Democratic candidate for governor Richard Graves also went on record in favor of clemency in mid-March, leaving Knight to weigh the political benefit of executing Wells. Throughout March the CRC delivered a petition signed by 45,000 people, the executive board of the heavily Communist United Electrical Workers (VB) declared its support, and Knight acknowledged receiving “thousands and thousands of communications” in a single weekend. On March 31, after the California

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Supreme Court concurred with his recommendation, Knight handed down official word: Wells was a “bad criminal,” but the judicial questions of “evidence and fact” provided sufficient grounds for commutation of Wells’s sentence from death to life in prison without possibility of parole.15 Sparked by the CRC, the popular campaign to save Wells had scored a visible success. In a March 10, 1954, letter, Patterson had predicted to new San Francisco CRC leader Frances Schermerhorn, “We will win . . . not [because of ] the entering of Winchell or any other individual but [due to] the continuation of our activities along the lines which have been so correctly and aggressively pursued.” That same month the California Eagle described a key component of the protests: “Ministers, doctors, painters, newsmen, longshoremen—thousands of people are writing to Governor Knight for Wesley Wells’[s] life.” A diverse grassroots set of participants had indeed organized against an execution they argued to be disproportionate to the crime and symbolic of the larger racist practice of the prison system. As Dorothy Healey recalled three years later, Communists certainly participated—the Communist Party’s Wesley Wells Campaign Committee “initiated the broadest civil rights movement in our history,” she told delegates at a statewide convention. It would be inaccurate to call all those who protested Communists, or even party sympathizers, however. In a 1960 memoir Charlotta Bass observed, “Perhaps the greatest concentration of people from all walks of life in the state of California—labor, the Negro people, civil libertarians, churches, women’s clubs, youth organizations—joined in a great defense committee.” To save Wells from the gas chamber, the CRC, coupled with left labor, submitted a set of arguments that mobilized Communists, mainstream Democrats, and eventually liberal Republicans alike.16 In response to Knight’s action, Wells celebrated what he called a “temporary victory.” He was ready to “take my rightful place in society,” Wells told the San Francisco Chronicle, “I hope and am assured that my friends will continue to work for my freedom.” Wells further wrote an angry letter to Director of Corrections Richard McGee, taking exception with the latter’s hostile comments to the press after the clemency decision. Rather than consider him a “problem,” Wells challenged, McGee and prison officials should give him the chance “to make good, and eventually earn my release.” Following this cue, the postclemency issue of the Wesley Wells Defender carried a sketch of a white woman and a black man holding a banner reading “You Saved His Life, Now Win His Freedom!” Though congratulations were in order for the “fine work of bringing together people from all walks of life of every political creed and religious belief,” the article averred, “The job is not finished. . . . Wells must be free.” On the day Wells would have been executed, the Los Angeles Tribune published an editorial calling for a continued effort to win at least the possibility of parole. Across the country, meanwhile, Mrs. L. King, chair of the West Harlem Wells Defense Committee, wrote an encouraging letter to Wells. “While rejoicing with you and all those who made a victory possible, we fully realize the job is only partly done,” she assured him. In a flier about the case, the West Harlem committee thanked “the Amsterdam News, the churches, ministers, labor organizations, as well as doctors, lawyers, and ordinary citizens who contributed to saving Wells’[s] life.” The

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grassroots effort needed to continue, though, and the committee concluded, “Our slogan must be No Let-up Until Wells is Completely Free!”17 CRC leader William Patterson similarly saw “the follow up in the Wells case [as] a matter of extreme political and organizational importance.” The fight for “complete freedom,” he wrote Frances Schermerhorn on April 3, required maintaining a “united front,” the organization of which was “magnificent” in the Wells campaign. Patterson indeed hoped the activism generated by Wells could be transferred to the broader political struggle against McCarthyism, a point driven home at a CRC birthday dinner held on what would have been execution day for Wells (April 9). As reported in the Daily Worker, those gathered at the New York event first heard a recorded message from Wells, then listened to a number of speakers, including Patterson, denounce McCarthyism. Soon thereafter, the CRC’s Muriel Symington penned letters to I.F. Stone’s Weekly and Carey McWilliams’s The Nation, asking each to use his respective magazine to speak out for Wells’s release and against the “racist mistreatment” of all black prisoners. Out west the black press would continue to lead a media campaign throughout April, yet Patterson’s goal of linking the case to larger issues, whether McCarthyism or the “struggle of the Negro people,” would not be tangibly realized. Patterson himself would soon fall victim to the witch hunts, and the CRC no longer existed by the end of 1955.18 After gaining clemency in 1954, Wesley Wells would live another two decades in prison, his name periodically resurfacing in news. In 1960, for example, he reminded California Eagle readers about the case, explaining how he continued to languish in prison for a minor assault. Because of the increasingly charged law-and-order climate of the mid-l 960s, however, Wells later cautiously refrained from sending Governor Pat Brown a thirty-seven-page statement asking for help in obtaining the possibility of parole. In the extended letter, Wells noted that his attorney Leo Branton had mentioned the case to Nat King Cole, who “volunteered to invite Gov. Brown over for dinner some evening and present the appeal to him informally.” Whether the letter ever reached Brown or whether the governor ever met with Cole about the case is unclear, but Wells’s pleas would not go unheard forever.19 On July 1, 1974, Wesley Robert Wells walked out the gates of the California Medical Facility at Vacaville. Free after forty-six years of incarceration, cheers from inside the prison accompanied Wells, now sixty-three, as he met journalists and friends. Asked by the press for his immediate reaction, he responded, “Man, don’t my expression tell you how it feels?” Assuring reporters he was the “same man walking in that I am walking out,” Wells nonetheless added, “I’m older and wiser and more selfcontrolled.” Met by his attorneys Charles Garry and Leo Branton, Wells was then driven back to San Francisco in a silver Rolls Royce rented by the Delancey Street Foundation, a self-help program for ex-convicts. For the next eighteen months, before suffering a fatal heart attack, the former prisoner made Delancey Street his new home. With assistance from Assemblyman Willie Brown, the foundation had helped obtain Wells’s parole. Outside the gates of Vacaville, though, Wells explained the source of his freedom: “The power of the people got me out, and I am deeply grateful,” he said.20

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The Black Panthers could not take full credit for winning Wells’s release, but along with the party’s chief counsel Charles Garry, the Oakland chapter had indeed sustained an ongoing publicity campaign on the prisoner’s behalf. Wells had first written to the Black Panther in 1969, voicing praise for Garry while simultaneously providing the details of his own case. “Even more cruel and inhuman” than the death penalty, Wells said, was his sentence of life in prison without possibility of parole. In July 1974, the Panthers held a welcome home reception for Wells at the Son of Man Temple in Oakland, and that summer the Black Panther featured a three-part interview in which the formerly condemned inmate recalled nearly a half century of prison experience. Such a lengthy stretch, Garry noted, basically came as the result of stealing a suit and a car battery, which were then followed by Wells’s conflicts with other prisoners and guards. “The story of the indeterminate sentence is the story of Bob Wells,” Garry observed in 1974. Led by the Civil Rights Congress and radical attorneys like Garry, the left of the early 1950s initiated a powerful critique of the racist practice of the criminal justice system. The indeterminate sentence, they maintained, was being manipulated by prison officials against prisoners they did not like. For prisoners and activists linked to the Black Panther Party in the late 1960s, these arguments clearly assumed added urgency. Yet on two separate occasions—in 1954 and 1974—Wesley Robert Wells helped lead the successful grassroots mobilizations waged by the CRC, and later the Black Panther Party, on his behalf, ultimately freeing him from the “Jim Crow” he had endured for nearly a half century in California’s prisons.21 NOTES Theodore Hamm’s book on Caryl Chessman and the politics of the death penalty in postwar California is forthcoming from the University of California Press. He thanks Danny Walkowitz, Josh Sides, and Manning Marable for their advice on the Wells case. 1.

For an overview of the case and the definitive history of the CRC, see Gerald Horne, Communist Front? The Civil Rights Congress, 1946–1955 (East Rutherford, NJ: Fairleigh Dickinson University Press, 1988), 323–30; and Charles Garry and Art Goldberg, Streetfighter in the Courtroom: The People’s Advocate (New York: Dutton, 1977), 25–36. Between 1930 and 1967, eight prisoners were executed in California for violations of Section 4500, including three for nonlethal assault. 2. Gary, Streetfighter in the Courtroom, 25–36; the Black Panther quote is on page 25. 3. On links to CRC involvement in other cases, see Horne, Communist Front? and the CRC promotional booklet Civil Rights Congress Tells Their Story (Los Angeles, 1951[?]), Civil Rights Congress Collection, Southern California Library for Social Studies and Research (hereafter CRC-SCSS). On Patterson’s career, see Horne, Communist Front?; James Goodman, Stories of Scottsboro (New York: Pantheon, 1994), 103–5; and William L. Patterson, The Man Who Cried Genocide (New York: International Publishers, 1971). All of the cases in which the CRC was active— including Wells’s—were mentioned in the CRC’s 1951 “We Charge Genocide” petition brought before the United Nations by Paul Robeson; See Patterson, The Man Who Cried Genocide, 169–84, text of petition on pages 225–32, Wells mentioned on page 231.

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4. Wells to Ida Rothstein (August 19, 1952), Civil Rights Congress Collection, Schomburg Center (hereafter CRC-SC); CRC Press Release (January 15, 1950), CRC-SC. 5. CRC Circular (August 31,1950), CRC-SC; Goodman cited in CRC “Fact Sheet— Wesley Robert Wells,” (October 1950), CRC-SCSS; Goodman fully quoted, and legal history of case explained, in Royce Brier, “This World Today: The People vs. Wesley Robert Wells,” San Francisco Chronicle, March 19, 1954, p.14. 6. “Report on Delegation of Governor Warren,” (October 16, 1950), CRC-SC; Sacramento Bee, October 17, 1950; San Francisco Chronicle, October 17, 1950. In the 1950 gubernatorial campaign, Warren needed to appease the Republican right wing, which as best evidenced in Nixon’s campaign against Helen Geohegan Douglas, made Communism the defining issue; Warren would easily defeat James Roosevelt (FDR’s son) in the November election. See Burton R. Brazil, “The 1950 Elections in California,” Western Political Quarterly (March 1951): 67–71. 7. “Quentin Guards Break-Up Killers’ Sit-Down Strike,” San Francisco Chronicle, November 1, 1950; Wells to Garry (December 3, 1950), CRC-SC. In his death penalty memoirs, 88 Men and 2 Women (New York: Doubleday, 1962), Warden Clinton T. Duffy refers to a “vicious fight” between Wells and Chessman. Indicative of Wells’s reputation among prison insiders, Duffy’s only mention of Wells was as a “tough, consistent troublemaker”(188). 8. Wells to Ida Rothstein (October 14, 1950), CRC-SC; excerpted in CRC, “My Name is Wesley Robert Wells,” (San Francisco: 1951), 26–27; Green quoted on pages 5–6; Wells quoted on page 29. 9. John Howard Lawson, Wesley Robert Wells, Letters from the Death House (Los Angeles: Civil Rights Congress, 1951), Preface; Patterson to Rothstein (September 10, 1953), CRC-SC; Patterson to Editors (November 12, 1953), CRC-SC. 10. Patterson to Rothstein (February 5, 1951), CRC-SC; Rothstein to Patterson (September 1 and 16, 1953), CRC-SC. 11. For a list of participating unions, see Appeals to the Governor of California to Save the Life of Wesley Robert Wells (San Leandro, CA: Religious Committee for the Defense of Wesley Robert Wells, 1954), 54, 29, CRC-SCSS; Wells to Oil Workers International Union (August 20, 1953), CRC-SC; Organized Labor excerpted in “Appeals to the Governor,” p. 23; March conference described in Daily People’s World, March 9, 1954, p. 3. For more on the anti-Communist purge by California’s AFL-CIO leadership, see Gerald Horne, Fire This Time: The Watts Uprising and the 1960s (Charlottesville: University of Virginia Press, 1995), 3–9; on the ties between the CRC, organized labor, and the southern California black community, see Josh Sides, “‘You Understand My Condition’: The Civil Rights Congress in the Los Angeles African American Community, 1946–52,” Pacific Historical Review (1988), 233–257; for a survey of the Communist affiliations of many of the participating unions—the ILWU, UE, fur workers, and so on—see Ellen Schrecker, Many Are the Crimes: McCarthyism in America (Boston: Little, Brown, 1998), 26–31. A further example of grassroots participation was the fact sheet put together by Willard Harper, a civics teacher at Jordan High School in South Central Los Angeles; see “Does Striking a Guard Warrant Death?” CRC-SSCS; Harper also explained the case in a letter published in The Nation, February 27, 1954, p., 188. 12. On the politics of the black press, see Horne, Fire This Time, 6–7; views of the black press collected in Religious Committee, “Appeals to the Governor,” 21; Rogers’s Pittsburgh Courier articles (e.g., October 3 and November 7, 1953) circulated by the

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14.

15.

16.

17.

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State Defense Committee for Wesley Robert Wells, CRC-SCSS; Wesley Wells Defense Committee of Southern California, Wesley Wells Defender (e.g., March 5 and 12, 1954), CRC-SCSS. Religious Committee, “Appeals to Governor,” 9–15, 29; Presbyterian resolution cited in Daily People’s World, March 12, 1954, p. 8; AFCS members quoted in California Eagle, March 1954, CRC-SCSS. Text and signatories of letter from physicians cited in Religious Committee, “Appeals to the Governor,” 16–17; Howard and Frym excerpted on pages 8, 24; Los Angeles Daily News (ally of Democrats) cited in Wesley Wells Defender, March 12, 1954, CRC-SCSS. Another influential official supporter was Superior Court Judge A. A. Scott, who had sentenced Wells to prison for his 1942 theft; “I have been in touch with him on many occasions and noted a great change in his outlook. . . . Some of his letters are real masterpieces,” Scott wrote to California Eagle editor Robert Ellis. Letter reprinted in Religious Committee, “Appeals to the Governor,” 22. Winchell’s 1950 support cited in Religious Committee, “Appeals to the Governor,” 24; Knight quoted in Winchell’s New York Daily Mirror column, March 16, 1954; meeting of Hawkins (Los Angeles) and Rumford (Berkeley) with Knight cited in Wesley Wells Defender, March 12, 1954, CRC-SCSS; “Justice Issue in Wells Case,” San Francisco Chronicle, March 21, 1954; Graves, Knight, unions, et al. cited in Wesley Wells Defender, March 5, 12, and 19, 1954; full text of Knight’s communication in Execution File 24155, California State Archives. In a recent biography of Winchell, Neal Gabler offhandedly notes, “Thanks largely to Walter’s intervention, Wells’s sentence was eventually communicated” (Neal Gabler, Winchell: Gossip, Power and the Culture of Celebrity [New York: Knopf, 1994], 409). Patterson to Schermerhorn (March 10, 1954), CRC-SC; California Eagle, March 1954, CRC-SCSS; Dorthy Healey, “Report to Southern California District Convention,” HUAC Hearings, 86th Congress, IB (Washington, DC: GPO, 1960), 64; Charlotta Bass, Forty Years: Memoirs from the Pages of a Newspaper (Los Angeles: C. A. Bass, 1960), 180 (quoted in Horne, Communist Front?, 325). Wells quoted in San Francisco Chronicle, March 27, 1954; Wells to McGee, March 21, 1954, but includes quotes from the next week’s newspapers, CRC-SC; “Free Wells Move Now in Order,” Los Angeles Tribune, April 9, 1954, reprinted by CRC, CRC-SCSS; Wesley Wells Defender, April 7, 1954, CRC-SCSS; West Harlem Wells Defense Committee, “American Love of Justice Cheats Gas Chamber!” April 1954, CRC-SC; L. King to Wells (April 8, 1954), CRC-SC. After the clemency decision, Corrections Director McGee told the press, “We can’t have any sympathy for Wells as an individual” and “some of the inmates have said . . . ‘the only way to be sure to live a long time is to get Wells before he gets them first’”; quoted in Wells to McGee (March 21, 1954). Patterson to Schermerhorn (April 3, 1954), CRC-SC; Daily Worker, April 13, 1954, p. 5; Symington to Stone and McWilliams (April 11, 1954), CRC-SC; Patterson to Schermerhorn(April 27, 1954), CRC-SC. In mid-May 1954, a Nation editorial assessed the outcome of the case. “Left-wing elements called the Governor’s attention to the case,” editor Carey McWilliams wrote, but the bandwagon joined by various mainstream officials, members of the press, and others ultimately prevented “a cruel and senseless execution.” In his view, the “real ‘extremists’ in situations of this kind” were those who refused to join for fear of abetting the Communists. Curiously, McWilliams offered no opinion regarding the sentence of life without parole given to Wells. See “The Quality of Mercy,” The Nation, May 15, 1954, pp. 413–14.

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19. Service Union Reporter, March 1960, p. 207; California Eagle, April 28, 1960; Wells, Letter to the Editor, California Eagle, October 20, 1960; Wells to Brown (February 3, 1963), CRC-SSCS. 20. Well’s release summarized in Kevin Wallace, “Getting Out, in Style,” San Francisco Chronicle, July 2, 1974; “Chauffeur Meets Con at Prison Door,” Sacramento Bee, July 2, 1974; and “In Jail 46 Years, Man Wins Parole,” New York Times, July 8, 1974. Wells particularly cited the help of then-Assemblyman Brown in “Wells Says ‘Power of the People’ Freed Him,” The Black Panther, July 13, 1974, p. 5; Wells’s “power to the people” explanation noted in all of the above except the Sacramento Bee. 21. “About Charles Garry: Wesley Robert Wells,” The Black Panther, June 21, 1969, pp. 2–3; “Welcome Home, Bob Wells,” The Black Panther, August 3, 1974; three-part Wells interview in The Black Panther, July 27 and August 3 and 10, 1974; Garry, Streetfighter in the Courtroom, 35; Garry’s 1974 quote in “Wells Says ‘Power of the People’ Freed Him,” The Black Panther, July 13, 1974, pp. 5–6.

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PREPARED TO GOVERN JUSTLY Van Jones

It was humbling to be on the same stage with the founders of Critical Resistance, who with one heroic effort permanently changed the direction of discourse in this country about prisons. I’m also feeling a little shaken up. As often happens, a brother passed me a note before the panel. He has a nephew who is incarcerated in northern or, rather, “corporate,” California, where I’m from. The nephew is in bad physical shape; they won’t let the family stay in contact. There is also some kind of schizophrenia issue. This situation brought me all the way back to why I started doing this work. Wherever I go, people reach out to me because somebody done grabbed their kid, broke an arm, broke a jaw, and put him away. And if you believe in this country, if you think right now that you have rights, if you think this is a democracy or that any of that stuff on paper means shit—let something happen to your child. Then you will see how difficult it is just to get very basic justice. Just to get a police report when they’ve killed your child. Just to get a bookbag back after they’ve killed your child requires months and months of hard work and effort on the part of attorneys. Once your family member has gone to jail, it takes so much to stay in contact. It grinds people down. So I’m here to talk about what we’re doing about that. I want to talk about what our tactics have been. But also I want to talk about the strategic thinking that underlies our tactics. This work grew out of the basic struggles of what was happening in northern California. As black people were being gunned down by the police in record numbers in the mid-1990s and nothing was being done about it, young lawyers like myself began to reach out and try to figure out how to solve this problem. I have to admit that we went to the preachers first, and they didn’t want to have anything to do with us. I have to admit also that we went to the politicians, and they didn’t want to have nothing to do with us. I have to admit that we went to all the big shots first. We went to all the people in power, and it was only after every door was slammed in our face, only after every entreaty, after every letter and phone call was turned down and denied, that we went to the youth. We turned to the youth and asked them if they would take a stand for what was happening to us. And the beauty of it was that, just

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as Bob Marley says in “Ride Natty Ride,” quoting the Bible: “the stone that the builder refuse[d] [became] the head cornerstone.” It was the young people in northern California—the high school students and the community college students who didn’t even have books who took a stand and were willing to put themselves on the line when the big preachers and the politicians and the Willie Browns were nowhere to be found. Through this process, we discovered that the youth culture, the hip hop, the rap music that everybody wants to throw in the garbage can and say has nothing positive in it was the one force, the one glue that could bring out not three and four kids, but hundreds. Not to talk about bitches and hos and bling-bling, but to talk about justice. So we started going into the high schools and conducting these little workshops called “Know Your Rights.” And the kids would bust out laughing about five minutes into it. They would say, “Man, with the police, you ain’t got them rights: the police are going to do what they want to do. Get out of here with that old corny shit.” That’s when we said, “What will you do about it?” Because of these workshops we were able to pull people into putting on shows to demonstrate what they were going through with theater, poetry, and dance. I’m not talking about PhDs, I’m talking about sixteen- and seventeen-year-old kids in public high schools with no chalk who were putting on magnificent shows and performances that were breaking people’s hearts. When we challenged the kids again, we said, “Look, you’re talking on the microphone here at the Cell Space, here at the Black Box—all of these little places where you put on your shows—and it’s all good. But the mayor don’t know nothing about you. The city council don’t know nothing about you. The school board don’t know nothing about you. The county commissioner don’t know nothing about you. You’re up here on Friday nights, but these folk meet on Wednesday nights. Why don’t you come down with us to talk to some of these people in power about what you’re going through.” At first, the youth said, “I ain’t going down there. They don’t want to hear nothing I have to say,”—blah, blah, blah. “All right,” we said, “But hold on a second. You know what those city council and school board members got down there, everyone of them? Microphones and TV cameras! So, if y’all so bad, why don’t you bring your rap music and your hip hop and your poetry and all that up there where somebody will listen to you on TV?” And these same young people that everybody says don’t want nothing and ain’t about nothing, can’t get them to do nothing, came in the dozens and then the hundreds. We were able to win real victories, real reforms by running up in the California Board of Corrections, shutting the meetings down with hip hop ciphers. We learned something that way. When you run up in a school board meeting or a city council meeting and you have fifteen youth, a hundred and fifty youth, three hundred youth, and they grab the microphone, the media goes crazy to see it. But more important, you learn that the mayor can’t rap. School board president: can’t rap. None of them can rap. You change the power discourse in their meetings, and you show that young people, our young people, who you have thrown in the garbage can, are the only force that can change society. Listen to these children, listen to these young people.

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Those were our tactics. We marched on the district attorney’s house on Thanksgiving eve and told him about himself in a rap cipher on his front lawn on Channel Four and Channel Seven. Yes, we’ve shut down a Chevron board of directors meeting, we’ve shut down PG&E, we’ve done all these things with these young people who nobody wants to hear from, and we have gotten powerful officials to do things that nobody else could get them to do. We thought we were on to something that could begin to turn the tide in California because we had labor unions coming out. People who wouldn’t talk to each other would come to talk with the young people. They’re a magnet that can hold together a front that no other force could hold together. Unions that won’t even come and mess with the teachers will come out because there are kids involved. These young people nobody wanted to deal with, at first, became the base, and with them we were able to build a huge, united front. We were able to stop the superjail project in Oakland and other things using this strategy. But after 9/11, and after the Iraq war drive, we saw something happen that nobody had predicted: There was a shotgun wedding between the prison–industrial complex and the military–industrial complex. A shotgun wedding. And it produced this new thing, this national security state. With this seamless web of repression that runs west from Oakland, California, all the way over to Baghdad, we began to understand that our tactics are not good enough. They’re not sufficient. Now a new generation has to go beyond protests and preparing to protest. We have to prepare to govern this country, because the people who are presently trying to govern this country will destroy the whole world for petroleum and dollars if we let them. We have to do more now than just critique the country. We have to somehow learn to inspire the country to stand with us. There are two forces that are beginning to gather now. You can see it: read the papers, look at what’s happened. You have those forces that are standing with this national security state, this military–petroleum complex. If you work at the local level it shows up as a united front driven by three forces: the incarcerators, the polluters, and the developers. Go down to city council. Every time a dirty deal goes down that will hurt some homeless people or take money from the school system or mess over a whole neighborhood to make a mall, it’s the incarcerators, the polluters, and the developers. That’s a local expression, but go all the way up to that military–petroleum complex and they have the same money-making agenda. Every time anybody goes up against them—trying to stop them, trying to fight them— who do you begin to see over and over again; who is it? Those old, hip hop youth—just one generation removed—now working as school teachers, working in nonprofits, and standing up against the incarcerators, polluters, and the developers. And who are their allies? Them old crazy, protesting, anarchist, white kids. Every single time: hip hop and those anarchist kids against the world. And you gotta pick a side. You all asked me for some theory, and I’m saying that that’s my theory: We have the opportunity, going into the new century, to take on a new level of responsibility. I’m in California. We have a different strategic matrix out there that we must deal with. Black people make up six percent of San Francisco, Asians are thirty percent. In California, the biggest ethnic group is the white folk, second biggest is the Latinos,

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third biggest is the Asians, and the littlest group, pulling up the rear, is the black folk and the Native Americans. So, on the West Coast, we’re pushed into a specific position in terms of the politics of black liberation. Automatically, the question is: What is the alliance structure? What is the united front? How do you cooperate and work with the radical Asian youth, especially the Filipinos and the Samoans who are pushed down and are treated just like us and called niggers by the police? How do we reach out and work with those children? The number one strategic priority is our relationship with the Asian and Latino communities and the African community. The last piece that’s critical for us in moving forward is our responsibility as a majority in California. Collectively, people of color are the majority. The government says we’re the majority—that means we are a SUPERmajority. Therefore, we conduct ourselves differently because we realize that we have a different standing in the world. You train youth differently—to be the stewards of the whole state of California, the fifth-largest economy in the world. California’s economy is bigger than France, and people of color are the majority. So you don’t just prepare them to protest, you prepare them to govern: to govern themselves, to govern their affairs, to govern their organizations, and to govern justly the world they’ll inherit.

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P A R T

V I I

CONCLUSION: THE COLOR OF JUSTICE

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C O N C L U S I O N

THE CARCERAL STATES OF AMERICA Keesha M. Middlemass

Public policies tend to change in response to the public’s perception about the problem at hand. In terms of crime policy, public policies change and respond to the perception and the fear of crime. Crime in America is perceived to be a problem of the inner city and the urban poor. In the 1970s, as a result of the development and the perception of the crime problem, crime policy was directed toward different subgroups and populations that tend to populate the inner-city and urban environments. Punishment became systematic and institutionalized. Harsher punishments were meted out on a continual basis, resulting in the Carceral States of America. Incarceration dominates crime policy, resulting in undifferentiated punishment for nonviolent property crimes to convicted murderers, and the hardest hit subpopulation is that of black men. As society has become more violent and punishment and imprisonment dominate policy, there is a peculiar and disturbing pattern related to the contradiction of democracy, citizenship, and equality. Democratic politics frame our punishment policies, and democracy decides the appropriate punitive measures via the vote. Punishment and the institutions that inflict punishment do so without question in the pursuit of justice. Kateb (2006) argues that the system of punishment rests on democratic values and is reinforced via democratic institutions and democratically elected officials. Democracy and democratic principles are the bedrock of American government and American values. History teaches us that the Declaration of Independence was devoted to justifying the revolt against King George and England and explaining the significance of democratic rule. As a political document, its content was calculated to garner the support of revolutionaries to fight against England. History also teaches us that three key principles were woven into the Declaration of Independence, which later framed the creation of the U.S. government. The three ideals included human rights, political participation, and limited government. The Declaration of Independence articulated the ultimate goal of natural rights, that all men are created equal and that all men have certain unalienable rights. It went further, articulating the idea that government was beholden to men and that government derived its powers

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through the political participation of men. Last, the third ideal was that of limited government. Government was designed to represent the people and protect basic human rights, and if it failed at its job the people could change the form of government or change its representatives via the vote. As a political document, the Declaration of Independence sets forth a set of political ideals, but the particular political ideology was extended only to white men, a subgroup of the larger population. Women were left out, and blacks were not even considered to be a part of the conversation. American Indians were stripped of their land to ensure their unequal status in the new world. That was the eighteenth Century. We are now in the twenty-first century, and women have the vote, slavery has been abolished, and Native Americans have gained tribal acknowledgement and sovereignty powers previously stripped from them. Yet, for many, the ideals stated in the Declaration of Independence are still just that—a set of ideals extended to only certain groups or subpopulations within the larger society. Some theorists argue that it is desirable to limit the franchise and that America does not need widespread democratic participation (Crozier et al. 1975). This notion is not new, as groups have had to fight for political inclusion since the founding of this country (blacks—Thirteenth, Fourteenth, and Fifteenth Amendments, the Voting Rights Act of 1965; women—Nineteenth Amendment; and young adults— Twenty-Sixth Amendment). Increased political participation is a grave concern for some conservatives who believe that wider political participation is not necessary or desired (see Clegg 2001). To achieve limited political participation, legal means were devised and continue to be supported to limit the political participation of certain groups. One way to limit political participation is via a felony conviction. A felony conviction and the related collateral consequences of such a conviction challenge the notion that America stands for human rights, political participation, and limited government. Rather, American policymakers have created a set of public policies that deny minorities these three rights simultaneously and disproportionately. The prison–industrial complex, crime, and race are linked, and the relationship between crime policy and race is not new; rather, the connection between crime and race and the loss of civil rights, sadly, has a long history in the United States (see Keyssar 2000). Individuals convicted of a felony or “infamous crime” often lose some or all of their civil rights. In medieval Europe, the loss of one’s civil rights would result when individuals were found guilty of committing “infamous crimes” or crimes of “moral turpitude” (Ewald 2002). Similar disenfranchising practices were later adopted in England, where criminals were stripped of their rights to transfer property and access the courts. English colonists argued that those who committed “infamous crimes” should be restricted from the polity on the basis of the rationale that if one failed to adhere to customary behaviors, than disenfranchisement was a proper punishment, in addition to fines or jail time. The moral argument justified the use of felon disenfranchisement laws, and felons were easy targets, as they were convicted of violating the social contract. Separating out those who have political rights from those who do not based on a felony conviction for violating prevailing social norms was common (see Keyssar 2000). Originally, the removal of suffrage and other civil rights from criminals had a public dimension articulated in law and pronounced at the time of sentencing (see Ewald

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2002); however, the loss of one’s civil rights is now no longer a part of the official conviction record. The nonpenal punishment is inflicted upon the former felon postincarceration, and the collateral consequences related to a felony conviction act much like a second sentence. The second sentence serves as a way to segregate “others” from society. The criminal justice system, over time, has evolved into a set of interlocking policies that reinforce each other and ensure the loss of human rights. The electoral system then uses the felony conviction to deny political rights. As such, the protections espoused by Thomas Jefferson in the Declaration of Independence via limited government are denied those who do not have the right to vote. A central characteristic of the three political ideals advocated in the Declaration of Independence is that America is a democracy and relies heavily on the right to vote to function as a democracy. America still functions as a democracy; however, political participation is not equal in the United States for many reasons, including political, legal, cultural, and societal factors. The focus here, however, is the resulting loss of political rights via a felony conviction. Such a loss creates a stratified political community in which those most harmed by the criminal justice system do not have an equal political voice in each state and those without a felony conviction are overrepresented in the electorate. In 2004, nearly 7 million people were on probation, in jail or prison, or on parole at year end. Put another way, 3.2 percent of U.S. adult residents or 1 in 31 adults were under some form of correctional supervision. Of the approximate 7 million individuals who are under direct supervision is to think about those who are behind bars as simply a number—2,267,787; however, the numbers do not capture the lives interrupted, the communities that are disrupted, and the families that are in turmoil. The pain of criminal justice policy is not equally distributed across races and classes. The most recent Bureau of Justice Statistics figures on race, dating from 1997, indicate that about 9 percent of the black population in the United States was under some form of correctional supervision in that year, compared to 2 percent of whites and just over 1 percent of other races. Simply put, American criminal justice policies are locking up and supervising millions of people on a regular basis, predominantly from black communities. This denies those who are incarcerated for a felony conviction basic human rights, political rights, and access to government. This institutional control via public policy is not a new phenomenon; rather, the state has used many forms of institutional control—namely, slavery and now the prison—to segregate those deemed criminal and “other” from the rest of society. The prison is an enduring institution, and in the twenty-first century it continues to proliferate and support an entire industry. The United States has built over the last 35 years a carceral state unmatched by other Western countries. American criminal justice policies reflect more accurately the countries of China, the Russian Federation, and Sudan. “The U.S. now locks up its citizens at a rate 5–8 times that of the industrialized nations to which we are most similar, Canada and Western Europe,” said Marc Mauer, Director of The Sentencing Project, a nonprofit criminal justice research and advocacy group in Washington, DC. In fact, America has the dubious distinction of leading the world in the number of individuals imprisoned in jails and penitentiaries.

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The disproportionate effect of the carceral state is not even; rather, it falls heavily on minority and poor communities. It is now fast becoming the norm in some communities that more young men will get a felony conviction and serve time in prison than those who will go to college and earn a degree. The fact that black and Latino men are more likely to go to prison than college is having, and will continue to have, a devastating effect on the community’s political power, cultural contributions, economical well-being, social stability, and familial relationships. Of the many challenges that confront America, race continues to perplex and confound in ways that are not seen with the other challenges faced by America. Racial discrimination is endemic in the United States and reaches back to the founding of this country, when African descendants were counted as three-fifths of a white man in the U.S. Constitution. History documents the oppression and maltreatment of those deemed “Other” by white Europeans. Skin color was used to justify the mistreatment of peoples from other cultures, and this belief became a core guiding and governing principle. This principle of white hegemony is maintained through institutional racism that permeates practically every American institution, including the criminal justice system and its supporting institutions. Race is different, and it matters in a way that often trumps class. Race is a constant in the realities of political and social policy in the United States. Race plays a prominent role in shaping social and community interactions, as well as political power and access to government resources (see Lieberman 2005). Decades of criminal justice policies have shaped and reshaped the social, economic, and political landscape of minority communities in the United States. Power and access to power in America are often divided along class and racial lines. The fact that power is divided along class and racial lines is an accepted norm within America; however, scholars, practitioners, policymakers, and the general public are now making race and class synonymous. Yet, even after the passage of the Civil War Amendments and a host of other important pieces of legislation and Supreme Court decisions, race matters in ways that class does not. The growing ethnic and racial diversity of the United States is reflected in the racial diversity of individuals found in prison, and the prison experience and collateral consequences of a felony conviction has transformed the experiences of many young black and Latino men. There is a growing consensus among criminal justice researchers and policy advocates that public policy initiatives surrounding crime policy play a key role in determining the size and composition of the prison population. If policies were changed, the argument goes, then the composition and the size of the prison population would also change in response. The prison–industrial complex removes individuals from society and incarcerates them on the basis of a felony conviction; however, the separation of “haves” and “have nots” is not possible without crime policy. In the years following the Civil War, the separation of whites and blacks was possible through the criminalization of a variety of behaviors white legislators deemed “Black Crimes.” Between 1890 and 1910, many southern states rewrote their constitutions to tailor their criminal disenfranchisement laws in conjunction with other preexisting voting restrictions to increase the effect these laws had on disenfranchising black citizens (Shapiro 1993). Lists of

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“infamous crimes” developed randomly from state to state, with some states restricting voting rights based on concerns of the day, such as banning pirates from the franchise or banning Mormons who allowed polygamy, whereas other states created lists of crimes directed intentionally at capturing the newly freed slave population (Demleitner 2000). The use of a felony conviction to ban newly freed slaves from participating in society developed alongside the criminal justice system. Many southern states believed that criminal disenfranchisement was the most effective and legal method to exclude blacks from the polity (Shapiro 1993). More than two dozen states disenfranchised black men for committing serious crimes in the post–Civil War period and into the early part of the twentieth century (see Keyssar 2000). By the early part of the twentieth century, the denial of voting rights was practically automatic. By 1920, all but a handful of states had some mechanism barring suffrage from men who were convicted of a felony. Many southern states had detailed measures incorporated into law that included lesser offenses that labeled a large number of black men as felons, thereby automatically disenfranchising them (Keyssar 2000). The legal separation of the races continued well into the twentieth century, and although de jure segregation is no longer legal, de facto segregation continues. It is as if blacks have been relegated to a distinct, but different, social level, outside of the mainstream, and yet still remain an integral part of society. This perspective is grounded in the varied historical experiences of blacks in the United States— never fully accepted as citizens, yet a fundamental part of the rules and regulations that governed society. Blacks exist fully within the framework of American society, yet they also have a separate identity. As a result, often blacks are isolated from the larger society. The collateral consequences of a felony conviction are a result of a social construct designed for the long-term exclusion of offenders by race. Demleitner (2002) argues that the American policy of disenfranchising felons appears to have the one and only goal of permanent punishment of minorities, and that electoral and citizenship rights related to rehabilitation are not considered. Retribution satisfies the emotional and moral needs of justice; however, a lasting denial of civil rights turns the exoffender into a permanently dishonored member of society who is never forgiven for his sins (Demleitner 2000). This belief is demonstrated by how American states developed the list of offenses that mandate the denial of voting rights based on a felony conviction and crimes closely associated with one race. The legal mechanisms of felon disenfranchisement laws and the convergence of laws regulating democratic elections, coupled with the criminal justice systems’ reliance on a felony conviction to impose prison sentences, ensures that those deemed “other” are segregated out of the political system. The two sets of systems, rules, and procedures that govern the criminal justice system and the electoral system, although separate, are inextricably linked. The criminal justice system ensures the lack of political participation and representation in two ways: (1) by physically removing individuals from the community from where they could vote and (2) by imposing a felony conviction on their record. The inability to have political participation and political representation is sustained by the electoral system on release

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from prison, as individuals are barred from political participation because of their felony conviction, imposed earlier by the criminal justice system. Race matters in this equation, as it was the dominant social construct used to ensure that former slaves and their descendents did not have access to the ballot. Morgan Kousser in Colorblind Injustice (1999) argues that institutions and institutional rules have primarily shaped race relations and racial change in America; although Kousser concentrates on black and Latino political participation and political power, the plight of black and Hispanic peoples caught in the snare of the criminal justice system is also shaped by small and incremental changes. Policymakers and those who are in a position of power, making decisions that affect individuals that are outside of the power structure, tend to make vaporous decisions based on “good intentions” while seemingly remaining indifferent to any of the unintended consequences of their policy decisions. Policymakers and elected officials are able to craft objectives designed to address one societal problem or another, and their intentions always bring forth a set of consequences—good, bad, and indifferent—but these good intentions, poorly constructed into laws, are devoid of commonsense and consistent and coherent goals. Policymakers tend to create a set of rules and regulations that focus on punishment but are devoid of integrity, fairness, and justice. Programs require no accountability of the policymakers, and in this policy void, individual rights are trampled, and in their place is placed an institutionalized response that continually marginalizes minority communities. Gest (2001) argues that American politicians are always grappling with, managing, and waging war against crime. Crime and fighting crime have moved from a state and local issue to a national concern, and federal policies have followed. Washington, DC, and the powers that be in the national government spend an enormous amount of money on anticrime legislation and on the corresponding programs that the legislation mandates. Fighting crime in the 1980s and 1990s became synonymous with building more prisons and directing judges to hand out longer prison sentences to fill those prisons. “Tough on crime” become the rhetorical mandate from Washington, DC, and state capitols across the country. That rhetoric was followed with mandatory minimum prison sentences, three-strike and habitual offender laws, zero tolerance, truth in sentencing, the failed war on drugs, and structural forces that continually lock up more individuals each year (see Jacobson 2005), all of which vary considerably from state to state, except in one important way: such policies lead to an increased number of individuals who are housed in the vast warehouse commonly known as a prison. The prison becomes a containment engine of the current political order. Political impulses tend to follow high-profile crimes, and in turn they create a new set of anticrime policies (Gest 2001). In times of low crime rates, however, these policies are still on the books, and prisons still need to be filled. An effective way to ensure the continued use of prisons, the felony conviction and its subsequent prison term are used to segregate and marginalize individuals from their families and society (Gaynes 2006). The prison is not only the correctional institution but also locks people up away from their families in an effort to address a policy solution to the state’s crime

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problem, “lock ’em up and throw away the key” becomes the dominant rhetoric to support policies that address only incarceration and punishment. Prisons are a way to remove individuals and physically contain them in a form that is separate from “us.” The prison creates a dichotomy—“us” versus “them”—and in doing so places physical and psychological barriers between the convicted criminal and society. Public policy creates the walls that separate the criminal from society and diminishes his or her ability to reengage with society on release. Mass imprisonment is transforming a generation of young black and Latino men, creating social inequalities, and diminishing life opportunities. The prison–industrial complex—the criminal justice system, crime policies, judges, prosecutors, and the prison itself—incarcerates entire groups. Crime policy is no longer incarcerating individuals; rather, there is now the systematic imprisonment of entire groups. Entire groups are marginalized, diminishing future prospects and eroding social ties. The prison excludes, controls, and sends into exile a particular group of the broader society. Prison becomes exile and forms a socially contained world. This form of exclusion and the logic of confinement are justified through public policies, which are supported by the general public and elected representatives and other public officials. By ratcheting up the level of control of entire groups through imprisonment and then again on release from prison via the felony conviction, the great social experiment of extreme isolation is reinforced via institutional policies. Prisons keep people in and behind walls just as they keep them out and on the other side of the wall, creating a Carceral States of America. The logic of confinement is justified via public policies, and the ideals espoused by Thomas Jefferson in the Declaration of Independence are conferred on only some groups within society, just as those three rights—human rights, political participation, and limited government—were bestowed on a select group of individuals over 300 years ago. WORKS CITED Clegg, Roger. 2001. Who should vote? Texas Review of Law and Pol 6:159. Crozier, Michael J., Samuel P. Huntington, and Joji Watanuki. 1975. The crisis of democracy: Report on the governability of democracies to the trilateral commission. New York: New York University Press. Demleitner, Nora V. 2000. Continuing payment on one’s debt to society: The German model of felon disenfranchisement as an alternative. Minnesota Law Review 84:753. Ewald, Alec C. 2002. “Civil Death:” The ideological paradox of criminal disenfranchisement law in the United States.” Wisconsin Law Review:1045. Gaynes, Elizabeth. 2006. Hitting home: How perpetual punishment hurts families. Conference presentation at the New School’s Conference, Punishment: The U.S. record. December 1, 2006. Gest, Ted. 2001. Crime and politics: Big government’s erratic campaign for law and order. New York: Oxford University Press. Jacobson, Michael. 2005. Downsizing prisons: How to reduce crime and end mass incarceration. New York: New York University Press. Kateb, George. 2006. Punishment and the spirit of democracy. Conference presentation at the New School’s Conference, Punishment: The U.S. RECORD. November 30, 2006.

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Keyssar, Alexander. 2000. The right to vote: The contested history of democracy in the United States. New York: Basic Books. Kousser, J. Morgan. 1999. Colorblind injustice: Minority voting rights and the undoing of the second reconstruction. Chapel Hill: North Carolina Press. Lieberman, Robert C. 2005. Shaping race policy: The United States in comparative perspective. Princeton, NJ: Princeton University Press. Shapiro, Andrew L. 1993. Challenging criminal disenfranchisement under the Voting Rights Act: A new strategy.” Yale Law Journal 103:537. Thompson, Mark E. 2002. Don’t do the crime if you ever intend to vote again: Challenging the disenfranchisement of ex-felons as cruel and unusual punishment.” Seton Hall Law Review 33:167.

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INDEX abortion, 37, 177 Adams v. Richardson (1972), 153 Adoption and Safe Families Act (ASFA), 77 affirmative action, 2–3, 133–34, 136, 141, 146–49, 153–54, 204, 324 African American: children, 115; college students, 342; community, 37, 39, 73, 115, 177, 247, 250, 251, 261, 330, 335, 342, 343; community and Nation of Islam, 336; feminists, 39; history of protest, 134; intellectuals, 10; jurors, 60; lynch victims, 54; male prisoners, 175; managerial class, 2; men, 6, 8, 36, 38, 39, 221, 342, 343; population, 1; press, 358; prisoners, 7, 177, 182, 184, 336; voters, 239, 241, 242, 251; women, 7, 102, 104, 109–14, 117; women in prison, 76, 82; women, criminalization of, 111; women, negative cultural images of, 113; youth, 8, 10, 18, 329, 332 African American Studies, 9, 10 Africana Criminal Justice Project (ACJP), 9, 10, 11, 280 AIDS, 75, 175–93; PWAs (prisoners with AIDS), 175–82, 186–88, 190, 193 Alabama, 7, 8, 55, 60, 219, 226, 239–40, 249–50, 256, 268 Alfred, Laurent, 9, 10 American Bar Association, 62 American Civil Liberties Union (ACLU), 36, 163 American Indians, 11, 39, 374 Amnesty International, 64, 76 Anderson, Elijah, 26 Angel-Ajani, Asale, 325

Angola, 3 antimiscegenation laws, 159, 165 Arizona, 219, 226 Arkansas, 64, 219, 331 arson, 50, 177, 206, 221, 239 Aryan Brotherhood, 61 Atlanta Conference, 37 Attica, 5, 49, 180, 274–75, 307, 308; rebellion, 274 Autobiography of Malcolm X, The, 35 Baldus, David, 60 Baldwin, James, 36, 198, 281 Bambaataa, Afrika, 285 Batson v. Kentucky (1986), 56, 60 Bell, Derek, 144 Bell Curve, The, 38, 47 Bennett, William, 29, 30 Black Liberation Army, 274, 306, 307 Black Nationalism, 336 Black Panther Party, 36, 61, 68, 267–74, 307, 354, 362 Black Power, 268, 269, 276 Booker, Simeon, 160, 163, 166 Bourdieu, Pierre, 26, 28 Bourgois, Philippe, 38 Breaux, John, 108 Bronx, 280 Brown v. Board of Education of Topeka (1954), 133–34, 137, 139, 142, 145, 148, 152, 159, 201–2 Brown, Willie, 361 Budd, Wayne, 107 Burke, Yvonne Brathwaite, 209 Bush administration, 36, 108, 148, 323 Bush, George H. W., 4, 29, 105

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Index

Bush, George W., 29, 36, 43–44, 75, 78, 85, 105–6, 108, 145–46, 203, 253, 283, 323, 326 Califano, Joseph, 111 Callen, Michael, 176 carceral archipelago, 38 Carmichael, Stokely, 268, 269 Catholic Church, 206 Chavez, Linda, 203, 208, 209 Chicanas/os, 202–4, 208–9 Chicano Movement, 197 China, 61, 375 Chuck D, 288 CIA, 273 City of Richmond v. J.A. Croson Co. (1989), 150 City University of New York, 6 Civil Rights Act (1964), 2, 204 Civil Rights Congress (CRC), 353–55, 362 Civil Rights Movement, 45 Civil War, 37, 53, 144, 238, 240, 376–77 Clark, Kenneth, 145 Clark-Atlanta University, 47 Clarke, Kristen, 9, 91 Clear, Todd, 81 Cleaver, Eldridge, 36 Clegg, Roger, 255 Clinton administration, 7, 8, 170 Clinton, Hillary, 284 Clinton, William J., 36, 44, 64, 78, 106, 286 Cohen, Stanley, 28 COINTELPRO, 268, 271, 272, 273 Columbine, 45 Community Justice Center, 267 Conaboy, Richard P., 107 Congress of Racial Equity (CORE), 2, 271 Cooley, H.C., 331 Correctional Association of New York, 6 correctional facilities, 4–8, 12, 84, 177, 329 crack cocaine, 4, 11, 46, 95, 101, 102, 104–8, 110, 111, 276 Crenshaw, Kimberle, 124, 127 crime, 11, 21, 23, 29, 37, 46, 103–4, 108, 115, 219, 226, 301, 338, 359, 373, 378–79; nonviolent, 17, 20, 74–75

criminal justice system, 8–11, 19, 21, 27, 28, 30, 38, 43–44, 46–48, 54–55, 57, 67, 74, 80–81, 91–93, 96–98, 103, 113, 116, 217, 220, 227–28, 237–38, 251, 256, 277, 293, 304, 309–11, 330, 333, 347, 349, 353, 362, 375–79 criminal record, 255 criminalization, 17–18, 20–21, 26, 28–30, 101, 102, 104, 115, 117, 376 criminology, 35–39, 103 Critical Resistance, 36, 38, 325, 367 cultural studies, 37, 39 Curtis, Edward, 336 Danner, Mona, 79 Davis, Angela, 36, 37, 59, 66, 67, 109, 128 Davis, Hugh, 161 Davis, Ossie, 269 Dawson v. Delaware (1992), 61, 62 death penalty, 2, 53–57, 60–63, 65–67, 228, 353–55, 358, 362 death row, 55, 57, 60, 62–63, 65, 225, 354, 356, 358 Declaration of Independence, 135, 143, 373–75, 379 Delaware, 61–62, 219, 226 democracy, 278 Dent, Gina, 325 Department of Homeland Security, 325 Des Pres, Terrence, 176 deviance amplification, 28 Diallo, Amadou, 65, 68 Dilulio, John, 29, 44–45 disenfranchisement laws, 217–28, 237–39, 241–42, 249–50, 252, 254, 256, 374, 376–77 domestic violence, 83, 85, 92–93, 96, 109, 128, 294 Donziger, Steven, 73 Dred Scott v. Sandford (1857), 135, 239 drug: conviction, 82; offenders, 1, 7, 8, 49, 103; offenses, 5, 6, 76, 108, 109, 329; user, 178 Du Bois, W. E. B., 31, 35, 37–39, 281

Middlemass

Index

383

education, 6, 10–11, 19, 21, 47, 49, 55, 62, 65, 75–76, 78–79, 82–83, 85, 102, 136, 141–42, 145, 148–49, 151, 154, 179, 181–82, 187–92, 203, 218, 227, 252, 267, 275–76, 281, 325, 347–50; in prison, 275 Emancipation Proclamation, 31 Eminem, 287 Equal Protection Clause, 149, 249, 250

Giuliani, Rudolph, 68 Gordon, Avery, 326 Gordon, Diana, 102 Gordon-Reed, Annette, 161 Great Experiment, 73, 74, 85 Green, William, 68 Grenada, 3 Guinier, Lani, 205 Guinn v. U.S. (1915), 144

Farrakhan, Louis, 336–37, 340 FBI, 95–96, 207, 268, 270–73, 278 federal prisons, 4, 76, 323 Feinstein, Dianne, 107 felon, 248 felony conviction, 7, 10, 217–18, 222–24, 226–27, 240, 247–48, 250–57, 261, 374–79 felony disenfranchisement, 222, 248–50, 252, 253–55, 261; racial effect, 250 female prison population, 74, 104 feminist, 39, 85, 91, 92, 93, 94, 96, 98, 102, 109, 123, 124, 128 Final Call, The, 341 Fisk College, 31 Florida, 8, 101, 111, 165, 205, 219, 223, 226, 240–41, 251, 257 Foley, Neil, 200 Fordice v. U.S. (1992), 154 Foucault, Michel, 38 Fourteenth Amendment, 54, 138, 139, 144, 150, 165, 239, 249–50, 355 Fourth Amendment, 63, 111 Frankl, Viktor, 310 Frazier, E. Franklin, 35, 37–38 Freire, Paulo, 275 Friedmann, Alex, 227 Fruit of Islam, 336 Frym, Marcel, 359

Hahn, James K., 209 Hall, Stuart, 35, 39 handcuffs, 23, 293 Harlem, 9, 47, 67, 267, 269, 270, 274, 280–83, 301–2, 304–7, 309 Harlem Renaissance, 281 Hatch, Orrin, 107 Hayden, Jazz, 218, 301 HBO, 280, 325 Healey, Dorothy, 360 Hemings, Mary, 161 Herron, Brian, 218 Higginbotham, A. Leon, 66, 69 Hill Collins, Patricia, 116, 124, 127 hip hop, 10, 67, 69, 280, 287, 289, 368; global, 287 Hispanics, 6, 151, 182, 192, 201, 204, 205, 226 HIV, 75, 175–83, 184–91, 193, 302, 326 Hobson v. Hansen (1967), 145 Horne, Gerald, 353 Human Rights Watch, 1, 4, 76, 226 Hunter v. Underwood (1985), 250 Hurston, Zora Neale, 281 Hussein, Saddam, 324 hypercriminalization, 17, 22, 25, 26, 31

García, Hector P., 200 Gardell, Mattias, 337 Garland, David, 73 Garry, Charles, 354, 361–62 Garvey, Marcus, 268 Gates, Henry Louis, Jr., 47 Georgia, 7, 45–46, 55–56, 60, 225, 241, 252, 331 Geshan, Shelly, 110 Gilmore, Ruthie, 325

immigrants, 11, 197–200, 203–4, 206, 208–9 incarceration, 6–12, 17–19, 21, 29, 31, 37, 39, 46, 50, 62, 65, 74–77, 80–81, 91–92, 97–98, 103, 108–9, 114–15, 117–18, 123–28, 175, 178, 186–87, 191, 224, 226–27, 238–39, 240, 247, 252–53, 258, 260, 268, 273, 281, 309, 331, 379 infant mortality rate, 47 infanticide, 177 Ingram, Helen, 110 Ingram, Rosa Lee, 353–54

Middlemass

384

Index

Institute for Research in African American Studies (IRAAS), 8, 35 intermarriage, 159 International Publishers, 307 intravenous drug, 176, 178 Iraq, 43, 47, 259, 283, 287, 310, 323, 324; War, 47, 369 Jackson, George, 36, 37, 66 Jamaica, 268 Jamal, Mumia Abu, 59–64, 66, 68, 69, 259 Jay-Z, 287 Jefferson, Thomas, 137, 161, 375, 379 jezebel, 102, 111 Jim Crow, 1, 2, 11, 198, 225, 247, 257, 261, 289, 355–56, 359, 362 Johnson, Earvin Magic, 209 Johnson, Lyndon B., 2, 147, 200 Johnson, Paula, 102 Johnson, Shoshana, 47 juries, 5, 6, 54, 56, 60, 63, 94, 96, 98 jurors, 54, 56, 63 Justice Department, 4, 8, 9, 221, 272, 276, 330 Justice Policy Institute, 6, 108 Karlan, Pamela, 257 Kennedy, John. F., 2 Kentucky, 57, 219, 240–41 King, Martin Luther, Jr., 3, 44, 45, 48, 271 Kingston, Maxine Hong, 38 Kinkel, Kip, 45 Knight, Goodwin, 354 Koch, Ed, 45 Kousser, Morgan, 378 Latina women, in prison, 7, 74–76, 82, 83 Latino: community, 18, 19; housholds, 7; male prisoners, 175; men, 6; prisoners, 177; youth, 18, 329 League of United Latin American Citizens (LULAC), 199, 200–202, 208 Liberator, 273 Locke, John, 143 López, Ian F. Haney, 202 Lorde, Audre, 128 Loving v. Virginia (1967), 159 Loving, Mildred (Jeter), 159–62, 164 166–71

Loving, Richard, 160, 163–66, 170 Ludlow, Martin, 209 lynching, 37, 45, 54, 62, 65 Maine, 224, 238, 254, 259 Malcolm X, 269, 271, 281, 301, 309, 336, 337, 343 mammy, 110 mandatory minimum prison sentence, 49 Mandela, Nelson, 59, 309 manslaughter, 61, 109, 353 Manza, Jeff, 237, 253 Marable, Manning, 277 Margolick, David, 169 marijuana, 4, 5, 23, 29, 126 Martinsville 7, 353, 354, 357 Marxism, 37, 40, 307 Maryland, 7, 219, 226, 242, 254 mass disenfranchisement, 11 mass imprisonment, 18, 30, 73, 125, 128, 379 mass unemployment, 11 matriarch, 102, 105, 111 Matsumoto, Mio, 9 Mauer, Marc, 73, 375 McCleskey v. Kemp (1987), 56, 60, 65–66 McGee, Willie, 353–55, 357 Meese, Edwin, 276 Middle Passage, 289 Middlemass, Keesha, 9, 11 military-industrial complex, 323, 369 Million Man March, 335, 342, 343 Milosevic, Slobodan, 65 Minnesota, 7, 76, 219, 226, 237 Mississippi, 8, 60, 219, 226, 239, 249, 256, 355 Missouri, 219 Mitchell, Parren, 150 Mitford, Jessica, 36 mixed-race, 170 Mobile v. Bolden (1980), 148 Moore, Michael, 325 Morgan, J. Tom, 46 Morrison, Toni, 199 Mothers Advocating Juvenile Justice, 48 mothers in prison, 79 Moynihan, Daniel Patrick, 116 Mozambique, 3 Muhammad, Elijah, 336, 337, 343

Middlemass

Index

Muhammad, Wallace Fard, 336 Mumia. See Jamal, Mumi Abu murder, 4, 43, 53, 54, 56, 61, 75, 83, 95, 109, 177, 207, 221, 239, 249, 273, 307, 331 Myrdal, Gunnar, 143 Naim v. Naim (1955), 164–65 Nas, 284 Nation of Islam, 269, 271, 307–8, 335–43; Prison Reform Ministry, 337; Security Agency (NOISA), 337, 339 National Alliance for Radical Prisoner Reform, 48 National Association for the Advancement of Colored People (NAACP), 2, 54, 67, 151, 201, 271, 301, 336, 358 Native American, 160, 161, 167, 170, 171 Nazi concentration camps, 176 Nebraska, 219, 254 Nevada, 5, 219, 226, 256 New Jersey, 7, 56–66 New Left, 36 New Racial Domain, 11, 12 Newbeck, Phyl, 160, 163 Newton, Huey, 68, 269 Nixon, Richard M., 2, 36, 66 North Carolina, 5, 7, 101, 136, 165, 219, 226 Nuyorican Poe’s Cafe, 283 O’Brien, Mary Elizabeth, 176 Oakland, CA, 19, 47, 269, 362, 369 Ochoa, Pedro R., 200 Open Society Institute, 9, 267 organized labor, 3, 354 Oz, 280, 282–86, 325 Paltrow, Lynn, 110 parents, 24 Parks, Bernard C., 209 Patterson, William L., 353 Pawelczynska, Anna, 176 PCP, 192 Peltier, Leonard, 325 Pennsylvania, 5, 7, 61–62, 83, 225, 341 pentagon, 323

385

Personal Responsibility and Work Opportunity and Reconciliation Act (1996), 79 Pertilla, Al, 269 Philadelphia Negro, The, 37, 39 Plessy v. Ferguson (1896), 133, 137, 139–40 pneumonia, 192 Pocahontas, 162 Police, 4, 22–23, 28, 30, 63–64, 92, 94, 96, 105, 206, 272–73, 304, 307, 329, 332; NYPD, 348 Poole, Cecil, 354 Powell, John, 162 Pratt, Richard, 160, 168 prison-industrial complex, 37–38, 69, 73, 77–78, 80, 84–85, 91–92, 323–25, 347, 349, 369, 374, 376, 379 prisoners, 4–10, 12, 36, 45, 48, 64, 66, 74–76, 78, 80–83, 103, 109, 113, 123, 175–93, 242, 258–60, 274, 307–8, 311, 323, 348–49, 353–54, 362; New York, 347; organization of, 277 probation, 11–12, 18–25, 27–30, 38, 74, 84, 114, 126, 217, 224–25, 238, 257–58, 330, 375 public housing, 2, 3, 12, 82, 84, 248, 337–41, 343 race, 3, 5, 9–12, 19, 36–39, 46, 50, 53–57, 60, 63, 65, 67–68, 82, 91–93, 96–98, 101–9, 111, 113, 117, 124, 133–54, 160, 162–65, 167, 169–71, 197, 200–201, 205–8, 217, 227, 237–40, 249–50, 251–52, 257, 278, 329–31, 359, 374–78; and death penalty, 55; and public policy, 133 race-neutral, 134, 142, 149–50, 227 racial bribe, 205 Racial Integrity Act, 162, 164, 166, 171 Racial Justice Act, 57 racial profiling, 4, 6, 56, 63, 67, 92, 330 racialization, 8–9, 11, 17–19, 30, 31, 35–39, 73–75, 77, 80, 85, 107, 124–25, 128, 198, 326

Middlemass

386

Index

racism, 2, 11–12, 35, 37, 38, 44–45, 48, 53, 60, 76, 84, 92–94, 96–97, 102, 112, 140, 144, 147–50, 197, 199–202, 205, 210, 237, 326, 330, 353–54, 376; New Age, 45, 48 Rainbow Coalition, 3 Ramsey, Jon Benet, 56 rape, 4, 45, 48, 50, 54, 76, 83, 354 Reagan administration, 3–4 Reagan, Ronald, 3, 29, 36, 66, 105, 276 Reconstruction, 1, 137, 144, 148, 249, 261 Regents of the University of California v. Bakke (1978), 134, 136, 140–41, 146, 149 resistance, 3, 26, 28, 153–54, 167, 175–77, 183–84, 187, 190–93, 197, 204, 242, 248, 277; prison, 277 Rice, Condoleezza, 45 Richardson v. Ramirez (1974), 249–50 Richie, Beth, 76, 82–84, 109, 123, 127 right to vote, 8, 81, 116, 144, 218–19, 221–24, 228, 237–40, 242, 249–51, 253, 254, 256–58, 260–61, 301, 375 Riker’s Correctional Facility, 10 Ritchie, Beth, 326 Rizzo, Frank, 68 Roberts, Dorothy, 102, 115 Robinson, Cedric, 324 Rockefeller Drug Laws, 5, 49, 50, 68, 286, 288 Rockefeller, Nelson, 49 Roediger, David, 206, 208 Rolfe, John, 162 Rothman, Joshua, 161 Rothstein, Ida, 354–57 Rumsfeld, Donald, 323, 326 Rusche, Georg, 38 Russell, Katheryn K., 46 Rwanda, 65 San Francisco, 17, 19, 27, 47, 59, 66, 355, 357–60, 369 San Quentin, 66, 353, 354, 355 Sandifer, Robert “Yummy,” 44 Sauvé v. Canada (2002), 260 Schiff, Adam, 108 Schneider, Anne, 110 schools, desegregation, 145

Scottsboro Boys, 45, 353, 355 Seale, Bobby, 36, 68, 269 Sentencing Project, The, 8, 12, 36, 82, 225–26, 252, 375 September 11, 325 Shabazz, Betty, 301 Shapiro, Andrew, 251 Shaw v. Reno (1993), 136 Silber, John, 111 Simmons, Russell, 288, 289 Simon, Jonathan, 21 Simpson, O. J., 44 Sing-Sing, 5, 8, 274, 308, 347 slave codes, 53 slavery, 11, 31, 37, 45, 53, 97, 144, 160, 169, 177, 191, 198–99, 202–4, 225, 289, 348, 374, 375 Smalls, Biggie, 286 Smith, Andrea, 326 social welfare, 2, 3, 109, 149–50 Souls of Black Folk, The, 37 Souls: A Critical Journal of Black Politics, Culture and Society, 9, 11 South Africa, 3, 260, 309, 326 South Dakota, 7, 219 Southern Christian Leadership Conference (SCLC), 2, 271 Soviet Union, 3 spoken-word, 10 Strickland, Bill, 269 Student Nonviolent Coordinating Committee (SNCC), 2, 268–69 Students for a Democratic Society (SDS), 307 Sudbury, Julia, 325 Sullivan, A. D., 337 SUNY, 6, 308 superpredator, 29, 44 Supreme Court, 2, 54–57, 60–63, 65, 111, 136–38, 146–50, 159–60, 164–65, 169, 171, 218, 239, 249, 257, 258, 354–55, 360, 376 surveillance, 5, 19, 21, 22, 24, 26–27, 30, 103 Taney, Roger, 135 Teachers, 24, 309, 358 Tennessee, 31, 44, 219, 226–27, 256 Thirteenth Amendment, 53

Middlemass

Index

Thompson, Mark E., 218 three-fifths compromise, 143, 152, 376 Three Strikes law, 7 thug, 285 Till, Emmett, 45 Torres, Gerald, 205 Toure, Kwame, 268–69 Travis, Jeremy, 248 Trenton 6, 353–54 tuberculosis, 50 Turner v. Safley (1987), 258 Tutu, Desmond, 59 Uggen, Christopher, 237, 253 University of Birmingham, 39 U.S. Civil Rights Commission, 3 USA Patriot Act, 324 Vermont, 224, 238, 254, 259 Villaraigosa, Antonio, 209 Vilsack, Tom, 253–54 violent crime rates, 4 Virginia, 7, 65, 94, 101, 150, 159–71, 219, 226, 240, 241, 283, 355 Virginia Colony, 161 Volpe, Leti, 325 Vote Dilution, 251 Voting Rights Act (1965), 2, 8, 136, 148, 238, 249, 374 Wacquant, Loïc, 18, 26, 29, 38 Wallenstein, Peter, 160 War on Drugs, 4–5, 8, 10, 73, 75, 79, 81–82, 85, 103–10, 113, 117, 127–28, 224, 250, 330, 378 Ward, Geoff, 9

387

Warren, Earl, 54, 137, 159, 355 Washington, DC, 6, 8, 12, 101, 108, 114, 160, 163, 164, 250, 337, 340, 342, 375, 378 Washington, Harold, 3 Waters, Maxine, 209 Watts riots, 200 Weathermen, 307, 308 welfare queen, 102, 105 Welfare Reform Act (1996), 82 welfare state, 3, 21, 30, 85 Wells, Wesley Robert, 353, 356–58, 361–62 white Americans, 2–4, 10, 11, 106, 147, 150, 152, 153 white power, 1 whiteness, 162, 197–10 Whitman, Christie, 64 Willis, Paul, 26 Winfrey, Oprah, 287 Wingfield, Marshall, 166 Wren v. U.S. (1996), 56 Wyoming, 7, 219, 226, 241 Young Lords, 307 youth, 10–12, 17–31, 39, 67, 102, 208, 287, 323, 329–32, 338, 343, 367–70; black, 18, 31; high risk, 331, 332, 333; inner-city, 349, 350; Latino, 17, 18; mentoring, 333; white, 8 youth control complex, 17, 20, 30 Yugoslavia, 65 Zedong, Mao, 61

Middlemass