Racialization and Incarceration: The Politics of Polarization and Containment in Amerika (2016)

The following article by Kevin “Rashid” Johnson was written for (and will appear in) the book The Racialization of Murder, co-edited by StanDoyle-Wood, Bedour Alagraa and Gurpreet Johal, and due out in 2017.

There is an organic link between racialization and incarceration in Amerikkka. Both are tools that serve the interests of capitalist power and social control. To this end the ruling elite invented race and incited the oppressed masses against each other on the basis of equally invented racial fictions.

These fictional notions were embodied in the institutions of state power including the police, military, and prisons, which through violence have enforced the racialized status quo.

When certain racial notions and practices were discredited, they invented new ones to preserve the system. As the most oppressed of “racial” groups, New Afrikans/Blacks have increasingly presented the most acute insurgent danger to the capitalist status quo. This danger has intensified as New Afrikans have been pushed further to the margins of the U.S. economy and thus suffer increasing insecurity and lack of access to basic resources needed for survival.

To suppress this growing threat the capitalist-imperialist state has invoked its institutions of repression, including, and especially, its prisons. There has been an interplay between the political powers and the cultural systems to carry out this agenda, and insulate racialized society and imprisonment from being challenged or even questioned.

And so the racialized order continues to keep the masses polarized and thereby prevents the even greater danger of all oppressed sectors (of all “colors”) within the U.S. from uniting in a common struggle against the real oppressors, namely the capitalist-imperialist ruling class. The process is not difficult to follow when we know where to look.

The Invention of Race

The initial laboring classes of the English North Amerikan colonies were slaves and indentured servants. Initially there were no racial distinctions between anyone. The concept of race as a social category and status did not exist in early colonial life. The subsequent racialization of society proved necessary for the plantation elite to maintain their political power, wealth, and system of captive labor, so they invented race and racial fictions to serve this purpose.[1]

The division of English North Amerikan society along racial lines began in the late 1600s in response to frequent slave and servant revolts that not only shook the foundations of the colonial system, but actually succeeded in temporarily overthrowing it.

Initially the planters held Afrikans, Europeans, and some Native peoples in bondage, and under essentially identical conditions of brutal subjugation, which prompted their frequent united resistance. The decisive revolt was Bacon’s Rebellion (1676), when a rebellious planter, Nathaniel Bacon, incited Afrikan and European slaves and servants, along with poor farmers (many of whom were recently freed indentured servants), to stage an armed uprising against the colonial government. The revolt overthrew the government and the rebels burned down Jamestown, Virginia, the colonial capital.

Six months into the uprising, its leader Bacon died of an untimely illness, and with the arrival of reinforcements from England, the rebellion was put down. Following which the plantation elite and their government had to devise a system of social control that would secure them against future revolts, and safeguard their domination over the laborers and land on which their wealth and power depended.

They decided to divide and play the laboring class against itself, giving one sector an artificial sense of social authority, superiority, and privilege over the other and using the artificially elevated strata to police the other lower sector. This was done through their invention and use of race. In 1682 the colonial government enacted laws that racialized society into categories of “Negro” and “white,” and began phasing out the servitude of the “whites.” In 1691 slavery was made a permanent hereditary status for the so-called “Negroes.”[2]

In 1705 the racial line was further refined with the “hypodescent” rule, which defined as “Negro” anyone having “a single drop” of Afrikan blood, with the slave status passing by heredity from mother to child. This was done to ensure the continuation of slave status even to children born from the frequent rape and sexual exploitation of the Afrikan slave girls and women by “white” males.[3]

To enforce this arrangement the ruling powers organized the first domestic police – the slave patrols.[4] All “whites” were induced to serve on the patrols as a collective force for monitoring and containing slave society, which was done by imposing summary exceptionally brutal terror on them by means of public beatings, maimings, lynchings, and so on.

The violence which the patrols – manned primarily by poor “whites” – were allowed to inflict on new Afrikans for any actual or imagined slight, became the institutionalized norm of plantation social life. This system also served as a pressure release for the frustrations of the poor “whites,” which might otherwise have been directed against the ruling planter class that was the actual cause of everyone’s insecurity and poverty. Instead, the planters indoctrinated them to believe their misery was caused by the New Afrikans in their midst. So a divide was manufactured and preserved by polarizing these groups along racial lines, leading them to increasingly resent each other, while the oppressed of both “races” were induced to look to the planter class, who was actually the cause of everyone’s sufferings and misery, with trust, admiration, and awe. Thus was the system stabilized and secured against revolts.

The Rise of Racial Incarceration

In June 1772 the High Court of England outlawed the trade and holding of Black slaves, a ruling which extended to the English North Amerikan colonies. This edict and other grievances which the planter class of the colonies had against the English crown prompted them to violently break away from England, in the Amerikan War of Independence (1775-83).

The influx of immigrants from England into the Northern territories and the development of industry there generated a concentration and ascendance of an industrial capitalist class and political economy in the North, compelling the need to expand wage labor as opposed to the “free” slave labor on the rural plantations of the South. These competing economic systems prompted an antagonistic clash between the ruling classes of the North and South, generating the Amerikan Civil War (1861-65), which the industrial North won.

Although wage labor became the predominant form of labor in Amerika, slavery was not to be eliminated, nor was the racial stratification of society as a form of social control to end. The Civil War only reformed the system. In fact, in 1865 the 13th Amendment to the U.S. Constitution was instituted continuing the “legal” use of slavery, but now as punishment for crimes rather than as an explicitly race-based condition. Indeed, prior to and during the war, convict labor proved extremely profitable in mining, railroad, textile production, etc. After the War such notorious Confederate leaders as Nathan Bedford Forrest (founder of the Ku Klux Klan), rebuilt his fortune with convict railroad workers.

Prior to the War poor Euro-Amerikans were the main ones confined in prisons. New Afrikans, 94% of whom were slaves, were already forcibly confined by slavery. But with the abolition of slavery and enactment of the 13th Amendment, imprisonment and convict labor was suddenly directed at New Afrikans on a massive scale, with laws passed across the South to achieve this end and to preserve the racialized status quo, called “Black Codes.”[5]

At first the Union Army occupied the South and moved to counter the Black Codes. But this was with the motive of using the newly emancipated New Afrikans to build a political power and electoral base through which the North might break the old Planter class’s hold over the South. This gave rise to Reconstruction, but with very different results than what the Union was seeking, including the economic, political, and educational ascendancy of New Afrikans, and a class-based unity developing between them and many of the poor Euro-Amerikans, thus creating a social base for the united struggle and seizure of power by the laboring classes and poor of both “races.”

As a counter to the Union’s actions and its threat to the racialized status quo and the planter class’s traditional power, the old plantation elite incited a swift and widespread racial backlash (playing to the racial fears of the South that they’d long controlled and manipulated to their own ends). This prompted terroristic and vigilante violence against New Afrikans and their Euro-Amerikan allies across the South which the Union could not bring to heel. This violence was directed especially at those New Afrikans seen as making economic and political gains. Various laws were also passed to strip New Afrikans of basic citizenship rights including by disenfranchisement. This prompted the Union to back off and strike a compromise with the old Southern elite.

Racially selective criminal laws and law “enforcement” were again asserted against New Afrikans to impose slave-like conditions (convict labor, sharecropping, debt tenancy, etc.) and segregation (Jim Crow). The name Jim Crow symbolized the disguised racism of segregation and came from the name of a popular minstrel show character. Minstrels were stage productions, popular with Southern Euro-Amerikans of that era, in which primarily Euro-Amerikan performers made up in “’blackface” acted out caricatured imitations of New Afrikans.

In its “compromise” with the Southern elite, the Union soon joined in restoring New Afrikans to their former condition of subjugation, even removing at the point of their rifles those who’d occupied land taken from the old planters. The U.S. then withdrew its support for Reconstruction and in 1877 the Army withdrew from the South, leaving New Afrikans to fend for themselves against the vicious racial backlash.

The Southern reign of terror drove New Afrikans to flee in large numbers and settle in the urban centers of the North and West U.S. There they joined the lowest ranks of wage labor, were segregated, and met with a similar experience of racialized law enforcement. The enforcers of this system (police) served the same role as the South’s old slave patrols and racist Euro-Amerikan vigilante groups, of containing and repressing New Afrikans through terroristic violence and summary killings, on top of racially targeted imprisonment based on selective enforcement and application of criminal laws. The latter brought the judiciary to bear against them as an added institution of racial oppression of the antebellum era. As W.E.B. DuBois was to observe, “Negroes… look upon the courts as instruments of injustice and oppression, and upon those convicted in them as martyrs and victims.”[6]

The old Jim Crow era saw the expansion of New Afrikan convict labor, with them working on plantations just like during slavery, clearing wooded areas, digging ditches, constructing railroads and so on (bound together in chains) across the South. The Texas prison system, where I am being held in retaliation for my own political work while imprisoned in my home state of Virginia, became and remains the hub of convict labor and still widely uses chain gangs (now called “aggie squads” – or derisively called “hoe squads”). Indeed Texas compels all of its prisoners – except those with debilitating medical or mental health conditions – to work without pay under penalty of disciplinary action if they refuse. Often those with disqualifying medical/mental health conditions are still forced to work.

In fact Texas, which set the model of “convict leasing,” rented its prisoners out to corporations under conditions as bad and worse than that of German Nazi concentration camps. As Robert Perkins found:

“Recorded mortality rates in excess of 20 percent, in some instances, put U.S. Steel on par with German and Japanese companies that profited from slave labor in World War II. But while these corporations have been held to account, U.S. Steel has escaped unscathed. Although the Wall Street Journal recently probed the company’s shameful history, no reparations movement has emerged among former convicts or their descendants.”[7]

Through a similar process of cultural and political indoctrination as applied during the era of chattel slavery, the ruling elite have conditioned the general public to regard prisoners with much the same resentment as were the New Afrikan slaves; so that the public is as indifferent toward (and in many cases even support) their abuse, just as “White” society was toward the brutal mistreatment and exploitation of those slaves.

So Amerika’s punishment industry has not served to address or correct crime, but instead as a system through which to exploit, contain, and subjugate select racialized groups and the poor. In fact, throughout their use, prisons in Amerika have proven absolute failures in containing, controlling or stopping crime, yet the U.S. imprisons more people than all other countries in the world, and disproportionately targets people of color.

Creating “Unconscious” Racism

As we’ve shown, racism was deliberately created as a tool of social control and manipulation. It also continues based on continued deliberate actions of the ruling class which has molded and modified its forms for the same purposes.

Throughout U.S. history each time the lower classes have struggled for power against the dominant classes, racial divisions and conflicts have been appealed to and whipped up by the ruling elite through their institutions of social influence (mainstream media, politicians, churches, and so on), leading to a diversion of mass disaffection away from the power structure and towards racialized and other oppressed minority groups (New Afrikans, migrants, LGBTQ people, etc.).

Overt racism was discredited with the post-World War II exposure of the barbaric and inhumane crimes of the Nazis, particularly against racialized minority groups. Also, by the rise of movements across the 3rd World and within the U.S. against racialized oppression, such as the struggles against European colonialism of 3rd World peoples (of color), the Civil Rights, Black, Brown, and Red Liberation Movements, etc. These struggles compelled the elite, especially in the U.S., to disavow racism and overt displays of racist attitudes. But they still needed to preserve racial polarization in order to keep the masses divided. This was accomplished by their cultivating what has been called “unconscious racism.”

The old “conscious” racism that was proudly flaunted had to be jettisoned; and now the elite portrayed themselves as newly enlightened and allies of the anti-racist struggles on the one hand, while on the other they subversively continued to nurture racist attitudes across society and preserved its practices within the controlling institutions. It was the typical two-faced liberal versus conservative dual strategy of making mild concessions while preserving the same old oppressive conditions.

The game went like this. In 1963 when New Afrikans were planning at the grassroots levels to stage a mass siege to stop all movement and operations in the U.S. capital in protest of Jim Crow and inner city poverty, police violence and so on, President John F. Kennedy suddenly presented the previously pro-slavery pro-segregation Democratic Party as an ally of the Civil Rights Movement. Through moneyed interests he funded and promoted a coopted New Afrikan misleadership to become the head of the Movement and rein it in. In this way he was able to stop the planned siege on Washington, D.C. and convert it into a one-day peaceful march and model of future mass “protests,” and present the Democratic Coalition as the channel through which New Afrikans and other so-called minorities should seek resolution of their grievances. This coalition has predictably not solved a single problem facing these oppressed groups. Malcolm X predicted this sellout of the struggle in 1963 was going to result in a “long hot summer” of New Afrikan revolt, because of the continued betrayals of their struggles. And true to his warning, the urban centers across Amerika erupted in mass revolts beginning in the summer of the next year and continued through 1968.

On the other hand, during that same year (1964), Barry Goldwater ran an openly racist presidential campaign and used the “law and order” platform to appeal to Southern Euro-Amerikans portraying the civil rights protests (of passive disobedience of racist Jim Crow laws in the South) and urban uprisings as threatening the Southern way of life through lawlessness; thus equating the New Afrikan struggles with attacks on the legal framework that upheld traditional white supremacy. But Goldwater’s campaign, with its overt appeals to racism, failed abysmally.

However, in the subsequent 1968 presidential race, Richard Nixon learned from Goldwater’s failed effort to win over the vast base of Euro-Amerikan voters who abandoned the Democratic Party, when it suddenly aligned itself with New Afrikans in 1963 in efforts to coopt their struggle, which was threatening the established order. Nixon refined the game, recognizing that while racist sentiment was still alive and well, expressions and appeals to it could no longer be made explicitly. As his principal advisor H.R. Haldeman revealed, Nixon, “emphasized that you have to face the fact that the whole problem is really the [B]lacks. The key is to devise a system that recognizes this while not appearing to.”[8] His counsel John Ehrlichman admitted of Nixon’s Southern campaign strategy that the aim was to, “go after the racists.” And to this end, “that subliminal appeal to the anti-[B]lack voter was always present in Nixon’s statements and speeches.” Nixon’s sneaky appeal to racism at a time when overt displays of racism were unpopular, succeeded where Goldwater’s open appeals had failed. The race game took on a new shade. The era of “sneaky racism” was born.

The new order of sneaky racism was to follow Nixon’s design and proposal to the letter, creating a system where it was perfectly fine to be racist and practice racism so long as racist intentions are concealed or disguised.

Nixon set the standard, the next step was to give it legal sanction. This was done by the U.S. Supreme Court who set out a new interpretation of the U.S Constitution’s anti-discrimination (equal protection) clause that made such sneaky racism immune from constitutional challenge.

To do this the Justices (sic!) created a wholly new ruling that so long as one hid or disguised racist motives or intentions, they were free to create racist laws and policies. They did this in the 1976 ruling in the case, Washington v. Davis,[9] which essentially legalized Nixon’s doctrine of sneaky racism.

Prior to Davis, under the 14th Amendment’s equal protection clause, one could challenge laws, policies, practices, etc., that had racially discriminatory effects without needing to prove racist intentions. For example, in the pre-Nixon ruling Hunter v. Erickson,[10] the Supreme Court held that a law violated the equal protection clause without explicitly addressing its purpose, intent or legislative history.

However, suddenly, in Davis the Court changed this, holding that it is not sufficient to show laws, policies, etc. have a racially discriminatory impact alone to establish an equal protection violation. But rather, now one had to prove a discriminatory intent as well. The Court stated:

“[o]ur cases have not embraced the proposition that a law or other offensive act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional [s]olely because it has a racially discriminatory impact.”[11]

What’s most telling is the claim here that the Court did not previously allow findings of unconstitutional discrimination without proof of discriminatory intent was an outright lie.[12] In fact legal scholars can find no legal precedent for the Davis ruling. Rather the Court just suddenly created it acting outside the “usual” channels of following its own precedent previously laid down, or that of other Courts of authority. This because the ruling was instead motivated by the need of the status quo to preserve racism, but, according to the effective new Nixon doctrine, so long as racist intentions remained hidden.

It was clear by creating the “intent” standard, the court was making it practically impossible to prove a claim of unconstitutional racial discrimination. Even legal scholars have acknowledged that it is so easy to conceal racist intentions and to make racist acts and laws appear racially “neutral,” that proving discriminatory intent is almost impossible.[13] And it makes acts, policies, and laws that have discriminatory effects permissible by simply portraying them as done negligently or with reckless disregard, instead of with racist intent. As one constitutional text points out:

“[The requirement to prove discriminatory intent] overlooks the fact that minorities can also be injured when the government is ‘only’ indifferent to their suffering or merely ‘blind’ to how prior official discrimination contributed to it and how current acts perpetuate it.”[14]

Yet another noted that this standard, “provides little incentive for public institutions to address how their policies and practices perpetuate racial inequality.”[15]

As civil rights lawyer and legal scholar Michelle Alexander pointed out:

“[T]he Supreme Court has closed the courthouse doors to claims of racial bias. The Court has ruled that in the absence of conscious, intentional bias – tantamount to an admission or a racial slur – you can’t even get in the courthouse doors with allegations of race discrimination in the criminal justice [sic!] system.”[16]

And the court did this knowing that admission of racist intent will almost never occur, because as the courts have themselves recognized, discrimination is rarely openly confessed.[17]

This politically invented doctrine was soon inculcated into the broader society as occurred when overt racism was first invented 300 years before. Unconscious or unintentional racism now became the new and accepted normal. Socially, it became permissible to harbor and act according to racist sentiments, so long as it wasn’t seen to be done consciously or intentionally.

Racism would now become socially identified not with racist treatments of people of color, but rather with showing color consciousness, while displays of color-“blindness” (or not noticing race) proved one was free of racism. Of course this new standard proved to be an affront to people of color, because now de facto racism and discrimination was accepted while it was perversely projected as racist when one dared to even talk about race and racial injustice, since they were “noticing” racial issues. Questions of racial oppression were suppressed by now dismissing the victims as being themselves the racists if/when they exposed or noticed them.

In fact this doctrine of not noticing or talking about race also infected the political movements on the left, where pretending to be blind to racial categorization as a prevailing form of social identification and that race as such doesn’t exist, has been portrayed as a strategy of countering racism. Also when people of color express their own senses of cultural difference and pride as distinct from mainstream (“white”) culture, it is portrayed as “divisive” and racist, and many Euro-Amerikans (even well-meaning ones) are offended because people of color are expressing a desire to recognize their “differences.” Whereas people of color see this position as culturally insensitive, ignorant, and misinformed; and a perpetuation of age old racism which always sought to compel them to conform, assimilate, and aspire to adopt the values, styles, customs, and ideas of the “white” mainstream, which is by definition “white supremacy” and are exactly what the doctrines of “The White Man’s Burden,” “Mission Civilisatrice,” and such invoked to rationalize the many European conquests, genocides, colonizations, enslavements, etc. of people of color the world over.

Another mechanism for enforcing and preserving unconscious racism has been coined the doctrine of “deracialization.” Professor William W. Sales, Jr explained and gave an example of its application when Bill Clinton, as U.S. president, denied government posts to two prominent New Afrikan women – Spellman college president Johnetta Cole and civil rights attorney and University of PA law professor Lani Guinier – because they persisted in talking about race-based inequality against New Afrikans. As Sales explained:

”as the conditions African Americans (sic) face become worse and worse, the political and business leadership of the nation speaks less and less about this crisis confronting the race. Both Johnetta Cole and Lani Guinier were rejected because they refused to pursue what the political scientists call a politics of ‘deracialization’. One popular sense of ‘deracialization’ simply means that it is considered politically expedient not to talk about the problems of African Americans (sic) because White people feel uncomfortable with that topic and because the topic is ‘divisive.’”[18]

“Deracialization” as such enables unconscious racism by suppressing discussions or acknowledgment of racial inequalities and oppression. It insulates “white” supremacy from challenge and Euro-Amerikans from even being confronted with its existence, thereby removing the moral restraints that might be aroused against persistent racism by keeping its practice from being consciously acknowledged or even mentioned.

Barack Obama likewise based his own presidential campaigns and terms on “deracialization,” until New Afrikan mass protests and social media exposures forced the issue of prevailing racism in Amerika before the shocked eyes of the world; particularly in the form of routine officially sanctioned murders of people of color by police and the blatant militarization of the police in communities of color. Also the murder of nine New Afrikans as they attended a Bible study class on June 17, 2015, in the Mother Emmanuel Church in Charleston, SC by an openly avowed white supremacist. Before these events Obama lyingly insisted along with the mainstream media that Amerika was now a post-racial society in which racism was now dead.[19]

Indeed, in their twisted mouths, Obama’s very election in 2008 and 2012 was invoked as evidence of this lie. In fact, Obama’s election to the helm of power in a still deeply racist Amerika gives testament to the effectiveness of unconscious racism to preserve racism and racist abuses while pretending not to. A common self-congratulatory proclamation heard across Amerika was that Obama was able to receive a large “white” vote because Euro-Amerikans simply don’t notice race anymore.

We notice too that Dylan Roof, the accused killer of those nine churchgoers, has been universally denounced by the mainstream on account of his open stance on “white” supremacy, whereas, the establishment has gone to the ends of the earth to protect cops who’ve been murdering New Afrikans in manners no less heinous, because at worst they are “unconscious” of having racist inclinations. So what distinguishes a Dylan Roof from a murderous Euro-Amerikan cop is whether one openly expresses racist sentiment when they commit a racist murder. Any Klansman is thus free to join the local police force and freely murder any person of color, all he need do is refrain from openly avowing his racist motive. This in fact is the power of unconscious racism and the system created to continue to repress people of color in Amerika while, as Nixon promoted, “appearing not to.”[20]

Also, the shift after the 1960s went from individual acts of racism to institutional processes also, enabled by the holdings that made racism impossible to assail absent showing intent. Furthermore, racism has been built into U.S. society and its institutions for centuries, and exists independent of the intentions of any individual’s attitudes. By making proof of intent a necessary element for legally challenging racism, the system is thus able to treat people of color in the most explicitly racist manners from mass imprisonment, militarized police occupations of their communities, impunitous police abuse and murders of their members, systemic segregation in schools, housing, systemic poverty, etc., with complete immunity from “legal” challenge.

The Convergence of Sneaky Racism and Racial Imprisonment

Goldwater’s 1964 presidential campaign was the first time the “law and order” platform was raised as a partisan political issue. However, it was so effectively linked with the prevailing racist current across Amerika, that, “[b]y 1968, 81 percent of those responding to the Gallop Poll agreed with the statement that ‘law and order has broken down in this country,’ and the majority blamed ‘Negroes who start riots’ and ‘Communists.’”[21]

So while Nixon jettisoned the failed component of Goldwater’s racist political strategy (namely, overt appeals to racism), he nonetheless held fast to the “law and order” aspect that held Euro-Amerika under its sway:

“During the presidential election that year, both the Republican candidate, Richard Nixon, and the independent segregationist candidate, George Wallace, made ‘law and order’ a central theme of their campaigns, and together they collected 57 percent of the vote. Nixon dedicated seventeen speeches solely to the topic of law and order, and one of his television ads explicitly called on voters to reject the lawlessness of civil rights activists and embrace ‘order’ in the United States.”[22]

Upon his election, Nixon went about instituting the system he proposed, that would be targeted at New Afrikans without appearing to be, and based upon the “law and order” platform. He launched a War on Crime and a War on Drugs, both targeted at communities of color, and their political movements. He used the so-called drug war to vastly expand federal domestic police power, through which began several decades of a renewed targeting of New Afrikans with massive imprisonment, with each administration only heightening what Nixon began especially upon the election of Ronald Reagan who stepped up the drug war, and under whom the CIA-generated crack cocaine epidemic exploded in communities of color and the selective crack drug laws were instituted, that saw the U.S. prison population grow over three decades from 300,000 to over two million.

And not just the racist crack laws but the entire criminal (in)justice process that was used to target people of color with this explosion in imprisonment were insulated from challenge by the Court’s repeatedly invoking the sneaky racism doctrine set out under Washington v Davis. With respect to the racist federal sentencing laws that were sending vast numbers of New Afrikans to prison for crack cocaine possession, the courts upheld the laws, ruling:

“There is no evidence that Congress reaffirmed the sentencing disparity ‘at least in part’ because of, not merely ‘in spite of,’ its adverse effect upon blacks.”[23]

In other words, although the crack laws had a discriminatory impact on New Afrikans it was held to be not discriminatory because it was not shown that Congress had intended to discriminate against them in creating or upholding the laws. It was the doctrine of sneaky racism at play, where a racist law was upheld because its creators had disguised or concealed any racist intentions.

But the Supreme Court went on to apply the Davis doctrine much broader so as to insulate the entire criminal (in)justice process from challenge on grounds of racial discrimination. This was done in the 1989 ruling in McCleskey v Kemp.[24] As Michelle Alexander pointed out:

“In 1987, when media hysteria regarding [B]lack drug crime was at a fever pitch and the evening news was saturated with images of [B]lack criminals shackled in courtrooms, the Supreme Court ruled in McCleskey v Kemp that racial bias in sentencing, even if shown through credible statistical evidence, could not be challenged under the Fourteenth Amendment in the absence of clear evidence of conscious, discriminatory intent. On its face the case appeared to be a straightforward challenge to Georgia’s death penalty scheme. Once the Court’s opinion was released, however, it became clear the case was about much more that the death penalty. The real issue at hand was whether – and to what extent – the Supreme Court would tolerate racial bias in the criminal justice [sic!] system as a whole. The Court’s answer was that racial bias would be tolerated – virtually to any degree – so long as no one admitted it.”[25]

Alexander hit the nail on the head when she observed that the ruling was really about insulating a system that is inherently racist from being challenged as such by simply being sneaky about racial intent.

“There is good reason to believe that, despite appearances, the McCleskey decision was not really about the death penalty at all: rather, the Court’s opinion was driven by a desire to immunize the entire criminal justice [sic!] system from claims of racial bias. The best evidence in support of this view can be found at the end of the majority opinion where the Court states that discretion plays a necessary role in the implementation of the criminal justice [sic!] system, and that discrimination is an inevitable by-product of discretion. Racial discrimination, the Court seemed to suggest, was something that simply must be tolerated in the criminal justice [sic!] system, provided no one admits to racial bias.”[26]

And so there be no mistake about the extent to which the power structure has meant to go to enable sneaky racism and protect it from challenge, the Supreme Court went further in another case to extend the Davis principle to protecting not just “unconscious” racial bias, but also to deliberate racial bias, so long as one deceitfully denies it, to conceal racist motives. This was done in the 1995 case of Purkett v. Elm.[27]

In that case, the Court ruled that criminal prosecutors can systematically exclude people of color from juries so long as they invent a race-neutral excuse (no matter how absurd) for doing so. Again, here’s Michelle Alexander,

“In Purkett v. Elm, in 1995, the Supreme Court ruled that any race-neutral reason, no matter how silly, ridiculous, or superstitious, is enough to satisfy the prosecutor’s burden of showing that a pattern of striking a particular racial group is not, in fact, based on race.”[28]

This principle corresponds with studies that show that in this era of sneaky racism, many Euro-Amerikans reveal themselves to be openly racist in their private relationships but portray themselves publicly as race-neutral, even having “friends” who are people of color.[29]

This value system has been engendered in society at large where it is perfectly acceptable to act with racial bias, so long as that bias goes unadmitted. With the rise of protest movements against the pervasive practice of murders of people of color by U.S. cops, a number of federal probes (undertaken solely for purposes of damage control) have revealed police departments and cops all over to practice policies of blatant racial bias. Yet numerous “studies” have followed on the heels of these exposures which attribute such bias to “accidental” or “unconscious” racism. Which is portrayed as views and values that have developed in the perpetrators by factors over which they’ve had no conscious awareness and therefore could not have countered. What is avoided is the actual fact that this “unconscious” racism has been structured into society by design and insulated from being challenged or even spoken about by the power structure and the dominant culture. And this process not only has provided the means of mass imprisoning people of color in Amerika, but also continuing the practice of violent terror against them by the armed enforcers of the state.

These systems converge to continue serving the age-old purpose of mass polarization and containment of the most oppressed sectors who are resigned to a lower strata based upon completely invented racial categorizations and fictions that were and continue to be manufactured by those in power.

Dare to Struggle Dare to Win!
All Power to the People!

Notes

[1] See, Theodore Allen, “Class Struggle and the Origin of Racial Slavery: The Invention of the White Race,” ed. Jeffrey Perry (NY, 2006).

[2] See, William W. Hening, Statutes at Large: The Laws of Virginia (Richmond, 1808), pp:-492ff: 3:87-88.

[3] The rape of Afrikan slave girls and women by “white” men was both culturally and legally sanctioned. An example is found in the 1767 ruling of the Maryland Provisional Court that, “a slave had no recourse against the violator of his bed.” Quoted in, Kenneth M. Stampp, The Peculiar Institution (NY, 1956), p. 343. As Blassingame wrote, “The white man’s pursuit of black women frequently destroyed any possibility that comely black girls could remain chaste for long.” John W. Blassingame, Plantation Life in the Ante-Bellum South (NY, 1972), p. 82.

[4] Those New Afrikans who fled the South clearly recognized police as serving the same function and role as the old slave patrols which they called “patty rollers,” even giving the name “paddy wagon” to the vehicles police used to transport arrestees.

[5] The “Black Codes” were used to limit where New Afrikans could live and work, and criminalized those without jobs or money. Those convicted were leased to plantation owners and other companies where they “worked off” their crimes. Also New Afrikan children were forced to serve as apprentices in industries.

[6] W.E.B. DuBois, The Souls of Black Folk: Essays and Studies, 1953 ed. (Greenwich,Conn.,1961), p. 133.

[7] Robert Perkinson, Texas Tough: The Rise of America’s Prison Empire (NY, 2010).

[8] H.R. Haldeman,The Haldeman Diaries (NY, 1994), p.53. For the subsequent quote of John Ehrlichman, see Ehrlichman, Witness to Power: The Nixon Years (NY, 1970) p. 233.

[9] Washington v. Davis, 426 U.S. 229 (1976).

[10] Hunter v. Erickson, 393 U.S. 385 (1969).

[11] Davis, 426 U.S. at 238-39.

[12] Michael J. Perry, “The Disproportionate Impact Theory of Racial Discrimination,” 125 U. Pa. L. Rev. 540, 544 (1977).

[13] Charles R. Lawrence, “The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism” 39 Stanford Law Review 317, 319 (1987).

[14] Lawrence H. Tribe, American Constitutional Law (2nd Ed. 1988), pp. 1518-1519.

[15] Olatunde C. A. Johnson, “Disparity Rules,” 107 Columbia L. Rev. 374, 386 (2007).

[16] Michelle Alexander, “How the Drug War Has Subjugated Poor People of Color and Nullified the Fourth Amendment,” Nieman Watchdog (Sept. 20, 2010).

[17] Hillery v. Pulley, 563 F. Supp. 1228, 1238 (E.D. Ca. 1 983).

[18] William W. Sales, Jr., From Civil Rights to Black Liberation: Malcolm X and the Organization of Afro-American Unity (Boston, Ma., 1994), p. 11.

[19] Just as bill Clinton denounced Johnetta Cole and Lani Guinier, Obama publicly denounced his pastor, Jeremiah Wright, because Wright criticized the role of the U.S. government in the ongoing abuses and neglect of New Afrikans.

[20] Op.cit., note 8.

[21] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (NY, 2010/2013), p. 46.

[22] Ibid.

[23] United States v. Teague, 93 F. 3d 81, 85 (2d Cir. 1996).

[24] McCleskey v. Kemp, 481 U.S. 279 (1989).

[25] Op. cit., note 16, p.109.

[26] Ibid, p. 111.

[27] Purkett v. Elm, 514 U.S. 756 (1995).

[28] Op. cit., note 21, p. 122.

[29] This was seen in studies such as ones conducted by sociologists Joe Feagin and Leslie Picca in their book Two-Faced Racism: Whites in the Backstage and Frontstage.