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American Behavioral Scientist
DOI: 10.1177/0002764207307745
2008; 51; 625 American Behavioral Scientist
Rose M. Brewer and Nancy A. Heitzeg
Complex
Color-Blind Racism, and the Political Economy of the Prison Industrial
The Racialization of Crime and Punishment: Criminal Justice,
http://abs.sagepub.com/cgi/content/abstract/51/5/625
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625
American Behavioral Scientist
Volume 51 Number 5
January 2008 625-644
© 2008 Sage Publications
10.1177/0002764207307745
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The Racialization of
Crime and Punishment
Criminal Justice, Color-Blind Racism,
and the Political Economy of the
Prison Industrial Complex
Rose M. Brewer
University of Minnesota at Twin Cities
Nancy A. Heitzeg
College of St. Catherine, St. Paul, Minnesota
The current explosion in criminalization and incarceration is unprecedented in size,
scope, and negative consequences—both direct and collateral—for communities of
color. These macro systems exist in relationality to the micro dynamics of living in the
midst of police scrutiny, economic marginalization, and political disenfranchisement.
Critical race theory is a guide for pedagogy and praxis in exploring the racist and clas-
sist foundations of current micro and macro injustices. Using Supreme Court opinions
and the voices of political prisoner/prisoners of conscience as evidence of the dominant
text and the dissent, this article explores the following issues: the roots of U.S. law,
criminal justice, and mass imprisonment in classism and racism; the political economy
of the criminal justice system and the prison industrial complex; the intersectionality of
injustices rooted in micro and macro systems; and the role of prisoners of conscience/
political prisoners in inspiring resistance to micro and macro injustice.
Keywords: prison industrial complex; color-blind racism; critical race theory;
racism and the law; racism and the criminal justice system
The post–civil rights era explosion in criminalization and incarceration is funda-
mentally a project in racialization and macro injustice. It is, too, a project deeply
connected to political economic changes in advanced capitalism. Multinational glob-
alization in search of cheaper and cheaper labor and profit maximization is part and
parcel of the growth of the prison industrial complex. The ideological underpinnings
of racialization and the political economy of inequality are at the core of this dis-
cussion. It is the latest in a historically uninterrupted series of legal and political
machinations designed to enforce White supremacy with its economic and social
benefits both in and with the law; “all domination is, in the last instance, maintained
through social control strategies” (Bonilla-Silva, 2001, p. 103). As movements for
abolition and civil rights end the institutions of slavery, lynching, and legalized
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626 American Behavioral Scientist
segregation, new and more indirect mechanisms for perpetuating systemic racism
and its economic underpinnings have emerged. In this era of color-blind racism,
there has been a corresponding shift from de jure racism codified explicitly into the
law and legal systems to a de facto racism where people of color, especially African
Americans, are subject to unequal protection of the laws, excessive surveillance,
extreme segregation, and neo–slave labor via incarceration, all in the name of crime
control. It is the current manifestation of the legal legacy of the racialized transfor-
mations of plantations into prisons, of Slave Codes into Black Codes, of lynching
into state-sponsored executions. The “imputation of crime to color” (Douglass, cited
in Foner, 1955, p. 379) continues to the present as racial profiling and culminates
ultimately in the new plantation—in the prison industrial complex.
As Coates (2004) rightly observes,
the reliance on social justice rather than civil justice is of critical importance. Civil jus-
tice, with its explicit links to the rights and privileges of citizenship, does not (as Chief
Justice Taney clearly argued), apply to those outside the pale of societal membership.
Civil justice, also reliant upon the laws of the day, is controlled and contrived to pro-
tect the powerful, often at the expense of the weak. (p. 848)
Indeed, if so-called civil justice is at the foundation of the persistent White
supremacist economic and political structure, then it is futile to call for only macro-
level political and legal remedies. It is, we will argue, this very civil justice that has
been used in the service of a series of racial projects. It has been used to enslave, to
segregate, to mete out unequal punishments for comparable crimes on the basis of
race. In the past, it has been used to explicitly reify via the law the essentialist White
supremacist paradigm. At present, civil justice has been at the center of legal claims
of color-blindness, forwarding the notion that if race is no longer the basis for legal-
ized discrimination, then it is no longer relevant to the law at all. It is civil justice
that currently claims that when explicit racial discrimination is removed from the
language of the law, it is magically removed from any societal impact and any sub-
sequent legal remedy.
Social justice requires that the role of civil justice in racialization be made trans-
parent. This requires social justice projects that emanate from the micro level, from
stories and struggle. Using the theory and methods of Critical Race Theory (CRT),
this article will attempt to begin this work. CRT proceeds from the premise that
racial privilege and related oppression are deeply rooted in both our history and our
law, thus making racism a “normal and ingrained feature of our landscape” (Delgado
& Stefancic, 2000, p. xvii). CRT acknowledges the myriad ways in which the legal
constructions of race have produced and reproduced systemic economic, political,
and social advantages for Whites. Challenges to racism require micro-level efforts to
expose the deep structures of racism first made possible by the legal benefits of what
Harris (1993) called “whiteness as property.” “Whiteness” produced both tangible
and intangible value to those who possessed it:
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The concept of whiteness was premised on white supremacy rather than mere differ-
ence. “White” was defined and constructed in ways that increased its value by rein-
forcing its exclusivity. Indeed, just as whiteness as property embraced the right to
exclude, whiteness as a theoretical construct evolved for the very purpose of racial
exclusion. Thus, the concept of whiteness is built on both exclusion and racial subju-
gation. This fact was particularly evident during the period of the most rigid racial
exclusion, as whiteness signified racial privilege and took the form of status property.
(Harris, 1993, p. 116)
Removing White supremacy from the law did not, of course, erase its property
benefits, nor did a shift to color-blindness in the law eradicate racism. CRT offers a
critique of civil rights legal reforms by noting that they failed to fundamentally chal-
lenge racial inequality. As Bell (2000) noted, “the subordination of blacks seems to
reassure whites of an unspoken, but no less certain, property right in their whiteness”
(p. 7). In the post–civil rights era, this subordination continues via color-blind legal
mechanisms, particularly criminal justice.
(It should be noted that whereas all communities of color suffer from racism in
general and its manifestation in criminal justice in particular, “Black” has been the
literal and figurative counterpart of “White.” Anti-Black racism is arguably at the
very foundation of White supremacy [Bonilla-Silva, 2001, 2006; Feagin, 2000]. For
this reason, in combination with the excessive overrepresentation of African
Americans in the criminal justice system and the prison industrial complex, our
analysis will largely focus on the ways in which the law has been a tool for the
oppression of African Americans.)
CRT also offers the use of narratives and context to surface these deep structures.
We adopt these methods here, relying on the narratives and counternarratives of both
judicial opinions and political prisoners/prisoners of conscience, referred to by
James (2003) as “imprisoned intellectuals.” The dominant story and the dissent
reveal the deep roots of current practices and the extent to which methods of legally
enforcing White supremacy merely shift and change shape over time. These com-
peting narratives provide a micro-level foundation for exposing and challenging the
systemic injustice that has persisted over centuries. The words of those empowered
to interpret the racial meanings of the Constitution and the words of those oppressed
by these very same decisions will illuminate the law and its application as a consis-
tent, albeit subtly changing, project in racialization.
Current Situation of Criminal Injustice
There is no dispute as to the extent of the dramatic escalation in criminalization
and incarceration in the United States that has occurred during the past 35 years.
Much of this increase can be traced to the war on drugs and the rise of mandatory
minimum sentences for drug crimes and some other felonies. More than 47 million
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Americans (or 25% of the adult population) have state or federal criminal records.
An estimated 13 million Americans—6% of the adult population—are either cur-
rently serving a sentence for a felony conviction or have been convicted of a felony
in the past (Mauer & Chesney-Lind, 2002, p. 51). Approximately 7 million adults
are currently under some sort of correctional supervision in the United States. More
than 4 million are under some sort of community correctional supervision such as
probation and parole; another 2 million are incarcerated in prisons and jails. More
than 3,500 of these are awaiting execution, some for federal crimes and most for cap-
ital offenses in 1 of the 38 states that still allow for capital punishment. For every
100,000 Americans, there are 699 in prison—this is the highest incarceration rate in
the world (Bureau of Justice Statistics, 2004).
There is also no dispute that the poor and people of color, particularly African
Americans, are dramatically overrepresented in these statistics at every phase of the
criminal justice system. The overwhelming majority of those in prisons and jails
were unemployed or employed in the minimum wage service sector at the time of
their commitment offense (Bureau of Justice Statistics, 2004). More than three quar-
ters of a million Black men are now behind bars, and 2 million are under some form
of correctional supervision. One in every 8 Black men between the ages of 25 and
34 is in prison or jail. One in 3 African American men and 1 in 10 Latinos between
the ages of 20 and 29 are under some sort of correctional supervision (Mauer &
Chesney-Lind, 2002). Approximately 50% of all prisoners are Black, 30% are
White, and 17% Hispanic. Whereas the adult male prison population has tripled in
the past 20 years, the number of women incarcerated has increased tenfold during
the same time span. Women represent the fastest growing sector of the prison popu-
lation. More than 90,000 prisoners are women, and they are overwhelmingly women
of color. African American women are 3 times more likely than Latinas and 6 times
more likely than White women to be in prison. More than 60% of women who are
in prison are serving time for nonviolent offense, especially for drugs (Bureau of
Justice Statistics, 2004).
And there is no dispute as to the devastating impact of these policies and prac-
tices on communities of color. In addition to the direct impact of mass criminaliza-
tion and incarceration, there is a plethora of what Mauer and Chesney-Lind (2002)
refer to as “invisible punishments.” These additional collateral consequences further
decimate communities of color politically, economically, and socially. The current
expansion of criminalization and mass incarceration is accompanied by legislation
that further limits the political and economic opportunities of convicted felons and
former inmates. Felony disenfranchisement is permanent in 14 states. Forty-eight
states do not permit prison inmates to vote, 32 states disenfranchise felons on parole,
and 28 states prohibit probationers from voting. Nationally, 40 million felons are dis-
enfranchised; 2% of the nation on average cannot vote as a result of a felony con-
viction. Of African American males, 13% are disenfranchised; in 7 states, 1 in 4 are
permanently barred form voting. In Florida alone, nearly one third of all Black men
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are permanently disenfranchised (Mauer & Chesney-Lind, 2002). Twenty-five states
bar felons from ever holding public office, 33 states place a lifetime ban on gun own-
ership for convicted felons, and all states require driver’s license suspension for con-
victed drug felons. States have also increased the occupational bans for convicted
felons, prohibiting them from teaching, child care work, related work with children,
or law enforcement. This is accompanied by eased access to criminal records, an
increase in all employers’ checking criminal backgrounds, and new technology,
which facilitates quick checks. Research indicates that the explosion in incarceration
is negatively correlated with Black male employment rates (Travis, 2002). Drug
felons are permanently barred from receiving public assistance such as Temporary
Assistance for Needy Families, Medicaid, food stamps, or Supplemental Security
Income. Drug use, possession, or sales are the only offenses other than welfare fraud
that result in a ban on federal assistance. The welfare fraud ban is limited to 10 years.
Probation or parole violations also result in the temporary suspension of federal
assistance. Drug felons are also permanently prohibited from receiving federal finan-
cial aid for education. Those convicted of drug felonies “or violent criminal activity
or other criminal activity which would adversely affect the health, safety, or right to
peaceful enjoyment of the premises by others” (Rubenstein & Mukamal, 2002) are
permanently barred from public housing or Section 8. A growing number of private
rental properties also screen for convicted felons. More than 20,000 persons each
year are denied federal housing assistance due to a felony conviction (Rubenstein &
Mukamal, 2002; Travis, 2002). A felony conviction by anyone in the household is
grounds for eviction from public housing. Recent legislation also creates barriers for
families and has particularly devastating consequences for women. Certain con-
victed felons are prevented from being approved as adoptive or foster parents.
Congress has accelerated the termination of parental rights for children who have
been in foster care for 15 of the most recent 22 months. Nineteen states regard felony
conviction as grounds for parental termination; 29 states identify felony conviction
as grounds for divorce (Chesney-Lind, 2002; Ritchie, 2002). And finally, the condi-
tions of incarceration contribute to physical illnesses (e.g., Hepatitis B and C,
HIV/AIDS, tuberculosis, general lack of adequate medical care), injuries (e.g., phys-
ical and sexual assaults from correctional officers and other inmates), and mental
disorders that continue to plague former inmates, families, and their communities on
release (Fellner, 2004).
The reasons for this unprecedented explosion in criminalization and incarcera-
tion, however, are in dispute. The rhetoric of color-blind racism would have us
believe that this situation is the unfortunate result of disproportionate Black and
Latino participation in crime. These so-called “racial realists” (Brown et al., 2005)
argue that racism is over, successfully eradicated by civil rights legislation, and that
if racial inequality persists, it is “the problem of the people who fail to take respon-
sibility for their own lives” (Brown et al., 2005, p. vii). This adherence to the ideol-
ogy of color-blindness (a co-optation and subversion of the dream of Dr. King)
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pervades conservative political and intellectual discourse, the corporate media, and
the minds of the public. Racism is widely held to be an individual problem, rather
than structural and systemic, an integral feature of what Bonilla-Silva (2001)
referred to as “racialized social systems” (p. 57). From this vantage point, the issue
then is crime, not race, and certainly not racism.
On the contrary, many contest this color-blind interpretation of contemporary
racial arrangements as well as its specific application to criminal justice (Bonilla-
Silva, 2001, 2006; Brown et al., 2005; Feagin, 2000; Mauer & Chesney-Lind, 2002;
Walker, Spohn, & DeLone, 2004). The scale, scope, and extremes of negative con-
sequences—both direct and collateral—for communities of color are new, especially
for women,1but the role of criminal justice in policing, prosecuting, imprisoning,
and executing people of color has deep historical roots. What is not new is the racist
and classist economic and political agenda that is foundational. The paradigms shift
from essentialist to color-blind and the practices of oppression are refined and
renamed, but the resulting inequality remains much the same. The law and its atten-
dant machinery were, and still are, enforcers of both White supremacy and capital-
ist interests.
The Past Is the Present
It is well established that our Constitution was written with a narrowly construed
view of citizenship that at the time included only White, property-holding men. This
property included both wives and children, but the most lucrative property of all—
indeed that property that made any economic survival, let alone prosperity, possible—
was slaves. By the time of the Constitutional Convention of 1787, the racial lines
defining slave and free had already been rigidly drawn—White was free, and Black
was slave. The Three Fifths Clause, the restriction on future bans of the slave trade,
and limits on the possibility of emancipation through escape were all clear indications
of the significance of slavery to the founders. Any doubt as to the centrality of White
supremacy was erased a few decades later in the case of Scott v. Sandford (1857),
where a majority of the Supreme Court denied the citizenship claims of Dred Scott
and went further to declare that the Missouri Compromise requirement of balance
between free and slave states in the expanding United States was a violation of the
due process rights of slaveholders. Referring to the legal status of African Americans,
Justice Taney’s opinion for the majority makes it painfully clear:
They are not included, and were not intended to be included, under the word “citizens”
in the Constitution, and can therefore claim none of the rights and privileges which that
instrument provides for and secures to citizens of the United States. On the contrary,
they were at that time considered as a subordinate and inferior class of beings, who had
been subjugated by the dominant race, and, whether emancipated or not, yet remained
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subject to their authority, and had no rights or privileges but such as those who held the
power and the Government might choose to grant them.
The growing abolition movement could not overcome this legal bar with debates,
written appeals, or legislative action. The economic and political interests of the
slave states were too dependent on the rising trade in slaves and cotton. It took the
armed resistance of slaves and radical abolitionists—of Vesey and Prosser, of
Tubman, Turner, and finally Brown—to push the question into conflict. Frederick
Douglass (1881, cited in Zinn, 2004, pp. 18-19) observed,
If John Brown did not end the war that ended slavery, he did at least begin the war that
ended slavery.... Until this blow was struck, the prospect for freedom was dim,
shadowy and uncertain. The irrepressible conflict was one of words, votes and com-
promises. When John Brown stretched forth his arm, the sky was cleared. The time for
compromises was gone.
The abolition of slavery did not result in the abolition of essentialist racism in the
law; it merely called for new methods of legally upholding the property interests of
Whiteness. In the presence of now freed Black labor, the vote was now offered to
unpropertied White men, and, as Du Bois and others have argued, Whiteness played
a central role in the reduction of class tensions. The “wages of whiteness” for the
working class were material as well as social; “whiteness produced—and was repro-
duced by the social advantage that accompanied it” (Harris, 1993, p. 116).
Postslavery, White supremacy in the law was accomplished by the introduction of
a series of segregationist Jim Crow laws, a new model for an essentialist racial par-
adigm that was now legitimated by so-called biology; the laws did not mandate that
Blacks be accorded equality under the law because nature—not man, not power, not
violence—has determined their degraded status (Harris, 1993, p. 118). The courts
were complicit and explicit in their support for the purity and attendant property
rights of Whiteness. This is made most dramatically clear in Plessy v. Ferguson
(1896). In a challenge to the legalized segregation of public transportation in the
state of Louisiana, Plessy argued that these laws denied him equality before the law.
The majority disagreed and set forth the principle of separate but equal. Justice
Brown wrote for the majority:
It is claimed by the plaintiff in error that, in a mixed community, the reputation of
belonging to the dominant race, in this instance the white race, is “property,” in the
same sense that a right of action or of inheritance is property.... We are unable to
see how this statute deprives him of, or in any way affects his right to, such property.
If he be a white man, and assigned to a colored coach, he may have his action for dam-
ages against the company for being deprived of his so-called “property.” Upon the other
hand, if he be a colored man, and be so assigned, he has been deprived of no property,
since he is not lawfully entitled to the reputation of being a white man.
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The sole dissenter in Plessy sets up the juxtaposition of Jim Crow and color-
blindness that frames the contemporary debate on race today. Justice Harlan, while
acknowledging the reality of White supremacy, decries its support with the law:
The white race deems itself to be the dominant race in this country. And so it is, in pres-
tige, in achievements, in education, in wealth, and in power. So, I doubt not, it will con-
tinue to be for all time, if it remains true to its great heritage, and holds fast to the
principles of constitutional liberty. But in view of the constitution, in the eye of the law,
there is in this country no superior, dominant, ruling class of citizens. There is no caste
here. Our constitution is color-blind, and neither knows nor tolerates classes among
citizens. In respect of civil rights, all citizens are equal before the law.
The corollary to the enhanced promotion of Whiteness was—and still is—the
ongoing devaluation of Blackness. The criminal justice system begins to play a new
and crucial role here. Angela Y. Davis (2003), in Are Prisons Obsolete? traced the
initial rise of the penitentiary system to the abolition of slavery; “in the immediate
aftermath of slavery, the southern states hastened to develop a criminal justice
system that could legally restrict the possibilities of freedom for the newly released
slaves” (p. 29). There was a subsequent transformation of the Slave Codes into the
Black Codes and the plantations into prisons. Laws were quickly passed that echoed
the restrictions associated with slavery and criminalized a range of activities if the
perpetrator was Black. The newly acquired 15th Amendment right to vote was cur-
tailed by the tailoring of felony disenfranchisement laws to include crimes that were
supposedly more frequently committed by Blacks (Human Rights Watch, 1998).
And the libratory promise of the 13th Amendment—“Neither slavery nor involun-
tary servitude shall exist in the United States”—contained a dangerous loophole:
“except as a punishment for crime.” This allowed for the conversion of the old plan-
tations to penitentiaries, and this, with the introduction of the convict lease system,
permitted the South to continue to economically benefit from the unpaid labor of
Blacks. As Davis (2003) noted, “the expansion of the convict lease system and the
county chain gang meant that the antebellum criminal justice system, defined crim-
inal justice largely as a means for controlling black labor” (p. 31).
After decades of resistance via legal challenges, grassroots organizing, boycotts,
Letters from the Birmingham Jail, sit-ins, jail-ins, marches, and mass protest, legal-
ized segregation began to come undone. Indeed, part of its undoing was the role that
activists played in exposing the official and extralegal violence that had previously
been cloaked in the legitimacy of the law. Emitt Till, Birmingham, Bloody Sunday,
and more bared the lie. In the historic 1954 Brown v. Board of Education decision,
Plessy was overturned; the essentialist racist paradigm was no longer codified in law.
This was complete with the passage of the Civil Rights Act of 1964, the Voting
Rights Act of 1965, and the passage of the 24th Amendment to the Constitution.
Whereas there was once hope that the law itself could be pressed into the service of
racial equality, those victories now seem bittersweet. Judge Robert L. Carter (1980),
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one of the attorneys who argued Brown, noted, “The fundamental vice was not
legally enforced racial segregation itself; this was a mere by-product, a symptom of
the greater and more pernicious disease—white supremacy” (pp. 23-24). Legally
supported essentialist racism was about to be replaced with a more insidious
counterpart—the paradigm of color-blindness.
Following the end of legalized racial discrimination, there was an especially con-
certed effort to escalate the control of African Americans via the criminal justice
system. Marable (1983) made this point: “White racists began to rely almost exclu-
sively on the state apparatus to carry out the battle for white supremacy.... The
criminal justice system became, in short, a modern instrument to perpetuate white
hegemony” (pp. 120-121). These practices gain primacy during the post–civil rights
years as the essentialist racist paradigm gives way to the new color-blind racism
where race and racism are ostensibly absent from the law and all aspects of its
enforcement. The criminal justice system provides a convenient vehicle for
physically maintaining the old legally enforced color lines as African Americans are
disproportionately policed, prosecuted, convicted, disenfranchised, and imprisoned.
The criminal justice system and its culmination in the prison industrial complex also
continues to guarantee the perpetual profits from the forced labor of inmates, now
justifying their slavery as punishment for crime. Finally, the reliance on the criminal
system provides the color-blind racist regime the perfect set of codes to describe
racialized patterns of alleged crime and actual punishment without ever referring to
race. As Davis (1998a) observed, “crime is one of the masquerades behind which
‘race’, with all its menacing ideological complexity, mobilizes old public ears and
creates new ones” (p. 62). There is no discussion of race and racism; there is only
public discourse about crime, criminals, gangs, and drug-infested neighborhoods.
This color-bind conflagration of crime with race is, in addition, insidious in its dis-
honesty and indirect effects; as Justice Powell, writing for the Supreme Court, noted,
“discrimination within the judicial system is most pernicious because it is ‘a stimu-
lant to that race prejudice which is an impediment to securing to [Black citizens] that
equal justice which the law aims to secure to all others’“ (quoting Strauder v. West
Virginia, 1880, in Batson v. Kentucky, 1986).
There were early warnings about the potentially devastating interconnections
between race, crime, and the law in the era of late capitalism. The mid-20th-century
criticism of the criminal justice system as foundationally racist initially emanated
from the Black Power Movement’s critique of institutionalized racism and police bru-
tality in communities of color. The writings of political prisoners (e.g.,Angela Davis,
Huey P. Newton, Assate Shakur) and prisoners of conscience (e.g., Malcolm X and
George Jackson) brought racism and its intimate connection with the penitentiary to
light. The 10 Point Program of the Black Panther Party began to make the connec-
tions between capitalist exploitation of the Black community and the criminal justice
system. Their demands provided the foundations for the contemporary critiques of the
role of criminal justice in upholding both capitalism and White supremacy.
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We want an immediate end to police brutality and murder of black people. We want
freedom for all black men held in federal, state, county and city prisons and jails. We
want all black people when brought to trial to be tried in court by a jury of their peer
group or people from their black communities, as defined by the Constitution of the
United States. (Foner, 1970, pp. 3-5)
These warnings went unheeded; indeed, they were too often violently suppressed.
The conflation of race and crime and the resultant rise of the criminal and prison
industrial complexes did and does find support in judicial decisions that legitimate the
central tenets of color-blind racism. The color-blind Constitution foreshadowed in
Harlan’s dissent has now become the voice of the Supreme Court’s majority. Color-
blindness as the new legal doctrine begins to emerge—despite judicial dissent—in
cases involving affirmative action and other remedies to centuries of racial inequality.
The Supreme Court adopts the color-blind model in Regents of the University of
California v. Bakke (1978), where the ruling is in favor of a White student who
claimed racial discrimination in his denial of admission to medical school. If the
Constitution is to be color-blind, race can only be considered with strict scrutiny, even
as a remedy for past discrimination. Justices Brennan and Marshall, in separate dis-
sents, pointed out the flaws of this approach. Brennan observed,
Claims 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... for
reality rebukes us that race has too often been used by those who would stigmatize and
oppress minorities. Yet we cannot... let color blindness become myopia which
masks the reality that many “created equal” have been treated within our lifetimes as
inferior both by the law and by their fellow citizens.
Justice Marshall’s dissent is even more prescient:
For it must be remembered that, during most of the past 200 years, the Constitution as
interpreted by this Court did not prohibit the most ingenious and pervasive forms of dis-
crimination against the Negro. Now, when a state acts to remedy the effects of that
legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.
As a series of subsequent cases from Bakke to Gratz v. Bollinger (2003) have shown,
that same Constitution has indeed erected a legal barrier with claims of color-blindness
(Bell, 2000; Brown et al., 2005).
Perhaps the most significant barrier to the pursuit of equality before the law
comes in the case of McCleskey v. Kemp (1987). After a series of death penalty cases
wherein the court decried racial discrimination in the application of the criminal
laws’ ultimate penalty, it is here that the Supreme Court, in a 5 to 4 decision, clearly
defined discrimination as individual, not institutionalized. Citing statistical evidence
from the now famous Baldus study, McCleskey argued that the application of the
death penalty in Georgia was fraught with racism. Defendants charged with killing
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White victims were more likely to receive the death penalty, and in fact, cases
involving Black defendants and White victims were more likely to result in a sen-
tence of death than cases involving any other racial combination. The majority did
not dispute the statistical evidence but feared the consequences. If the court were to
accept McCleskey’s claim, then the Equal Protection Clause of the 14th Amendment
would apply to patterns of discrimination, to institutionalized racism and sexism,
and to questions of structured inequality. These fears are expressed in Powell’s opin-
ion for the majority:
First, McCleskey’s claim, taken to its logical conclusion, [481 U.S. 279, 315] throws
into serious question the principles that underlie our entire criminal justice system. The
Eighth Amendment is not limited in application to capital punishment, but applies to
all penalties. Solem v. Helm, 463 U.S. 277, 289-290 (1983); see Rummel v. Estelle,
445 U.S. 263, 293 (1980) (POWELL, J., dissenting). Thus, if we accepted McCleskey’s
claim that racial bias has impermissibly tainted the capital sentencing decision, we
could soon be faced with similar claims as to other types of penalty. Moreover, the claim
that his sentence [481 U.S. 279, 316] rests on the irrelevant factor of race easily could
be extended to apply to claims based on unexplained discrepancies that correlate to
membership in other minority groups, and [481 U.S. 279, 317] even to gender.
Justice Brennan’s impassioned dissent makes clear the implications of this decision:
Yet it has been scarcely a generation since this Court’s first decision striking down
racial segregation, and barely two decades since the legislative prohibition of racial dis-
crimination in major domains of national life. These have been honorable steps, but we
cannot pretend that in three decades we have completely escaped the grip of a histori-
cal legacy spanning centuries. Warren McCleskey’s evidence confronts us with the sub-
tle and persistent influence of the past. His message is a disturbing one to a society that
has formally repudiated racism, and a frustrating one to a Nation accustomed to regard-
ing its destiny as the product of its own will. Nonetheless, we ignore him at our peril,
for we remain imprisoned by the past as long as we deny its influence in the present.
Color-blind racism, with its call to ignore race and its treatment of any residual
racism as individual and intentional, was now ensconced. Equal protection of the law
was for individuals, not oppressed groups, and discrimination must be intentional and
similarly individual. McCleskey closed off the last avenue for remedying structural
inequality with the law and left us imprisoned by the past, imprisoned with the present.
Intersections: Criminal Injustice,
Race, and Political Economy
The legal entrenchment of color-blind racism allowed White supremacist political
and economic advantage to be pursued—unchecked by either law or public discourse—
under the guise of criminal justice. Davis (1998b) noted,
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When the structural character of racism is ignored in discussions of crime and the ris-
ing population of incarcerated people, the racial imbalance in jails and prisons is treated
as a contingency.... The high proportion of black people in the criminal justice
system is this normalized and neither the state nor the general public is required to talk
or act on the meaning of this imbalance. . . . By relying on the alleged “race-blindness”
of the law, black people are scrumptiously constructed as racial subjects, thus manipu-
lated, exploited, and abused, while the structural persistence of racism—albeit in
changed forms—is ignored. (p. 62)
As before, this newest political and legal construction of White supremacy is inti-
mately interconnected with capitalist economic interests. The extreme racialization
of criminal justice and the rise of the prison industrial complex are directly tied to
the expansion of global economy, the decline of the industry and rise of the mini-
mum wage service sector in the United States, and the growth of privatization of
pubic services. The internationalization of the labor force and the turn to robotics,
computers, and hi-tech are having a profound impact on labor in the United States
and globally. The prison industrial complex is an expression and re-articulation of
the political economy of late capitalism. The intense concentration and privatization
of wealth in a few hands continues unchecked in this country. Indeed, the unparal-
leled growth of corporate power is at the heart of the economic inequality African
Americans and all working people are confronting.
Angela Davis (2003) again becomes important in interpreting the multiple inter-
sections of race, economy, and the prison industrial complex. She traced the histor-
ical links between current practices and the policies that emerged during the
post–civil war era:
Vast amounts of black labor became increasingly available for use by private agents
through the convict lease system and related systems such as debt peonage. This tran-
sition set the historical stage for the easy acceptance of disproportionately black prison
populations today.... We are approaching the proportion of black prisoners to white,
during the era of the southern convict lease and country chain gang systems. Whether
this human raw material is used for purposes of labor or for the consumption of com-
modities provided by a rising number of corporations directly implicated in the prison
industrial complex, it is clear that black bodies are considered dispensable within the
“free world,” but as a source of profit in the prison world. (p. 95)
This quest for dispensable labor increasingly includes women of color who, in light
of globalization, deindustrialization, and the dismantling of social services, are
propelled by state economic interests into the slave labor markets of the prison
industrial complex.
The prison industrial complex is not a conspiracy, but a confluence of special interests
that include politicians who exploit crime to win votes, private companies that make
millions by running or supplying prisons and small town officials who have turned to
prisons as a method of economic development. (Silverstein, 1997)
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This complex now includes more than 3,300 jails, more than 1,500 state prisons, and
100 federal prisons in the United States. Nearly 300 of these are private prisons.
More than 30 of these institutions are super-maximum facilities, not including the
super-maximum units located in most other prisons. The prison industrial complex
consumes vast amounts of tax dollars at the expense of education and other social
programs. Each year, the United States spends more than $146 billion dollars on the
criminal justice system, including police, the judiciary and court systems, and cor-
rections. More than $50 billion of this is spent directly on corrections, with the
majority of those expenditures going toward incarceration and executions—the two
most expensive sentencing options (Bureau of Justice Statistics, 2004). The quest for
profit has led to international U.S. expansion of the prison industrial complex in the
United States. Both private companies and the U.S. military industrial complex rely
on the global proliferation of both U.S. prisons and their internal practices at Basra,
Abu Ghraib, Guantanamo Bay, and untold other locations.2
In essence, the prison industrial complex is a self-perpetuating machine where the
vast profits (e.g., cheap labor, private and public supply and construction contracts,
job creation, continued media profits from exaggerated crime reporting, and
crime/punishment as entertainment) and perceived political benefits (e.g., reduced
unemployment rates, “get tough on crime” and public safety rhetoric, funding
increases for police, and criminal justice system agencies and professionals) lead to
policies that are additionally designed to ensure an endless supply of “clients” for
the criminal justice system (e.g., enhanced police presence in poor neighborhoods
and communities of color; racial profiling; decreased funding for public education
combined with zero-tolerance policies and increased rates of expulsion for students
of color; increased rates of adult certification for juvenile offenders; mandatory min-
imum and three-strikes sentencing; draconian conditions of incarceration and a
reduction of prison services that contribute to the likelihood of recidivism; collateral
consequences—such as felony disenfranchisement, prohibitions on welfare receipt,
public housing, gun ownership, voting and political participation, and employment—
that nearly guarantee continued participation in crime and return to the prison indus-
trial complex following initial release). As Donzinger (1996) aptly noted,
Companies that service the criminal justice system need sufficient quantities of raw
materials to guarantee long term growth in the criminal justice field, the raw material
is prisoners.... The industry will do what it must to guarantee a steady supply. For
the supply of prisoners to grow, criminal justice policies must insure a sufficient
number of incarcerated Americans whether crime is rising or the incarceration is
necessary. (p. 87)
In sum, Black workers, men and women, are at the center of this prison industrial
process. They are used again as exploited labor and as consumers—of products pro-
duced by prison labor. African Americans and other working people are less needed
in the free labor market under current conditions of globalization. Highly exploited
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global workers match cheap prison labor. So the processes of deindustrialization and
economic restructuring contribute to the process of accumulation for capital and the
increasing immiseration of the Black poor, and this is true because many of the deci-
sions are explicitly racial in form. Corporate actors choose to move out of Black
communities on racial grounds (Brewer, l983). Thus, private prisons play a key role
in the political economy of transnational capital. But so do public prisons. These
prisons are equally tied to the corporate economy “and constitute an ever growing
source of capitalist growth” (Davis, 2003, p. 96).
This exploitation of Black labor continues, made permissible, indeed possible,
with the law. Although the names and legal legitimations have changed, there is little
to distinguish the plantation from the penitentiary. Nevertheless, in the United States,
Blacks have been a central political force in checking unabashed profit realization.
Historically, this occurs through political struggle. We contend that it is only through
organized political struggle and radical pedagogies for change that the current situ-
ation will be transformed for social justice.
Transparency, Political Struggle, and
Radical Pedagogies for Social Justice
The call for social justice is “an implicit call for solutions, a call for remedies, a
call for action” (Coates, 2004, p. 850). As we have seen, the call for social justice
cannot rely on civil justice or macro-level remedies alone; law has been the hand-
maiden of what hooks (1992) has termed “the white supremacist capitalist patri-
archy” in the ever-evolving political and economic exploitation of persons of color.
To paraphrase Bell (1992), the 14th Amendment cannot save us. The call for social
justice requires more.
As the latest project in racialization, criminal justice and the prison industrial
complex have fundamentally racist and classist roots that must be exposed and abol-
ished. Reform is insufficient; “there can be no compromise with capitalism....
There can be no compromise with racism, patriarchy, homophobia and imperialism”
(Marable, 2002, p. 59). The work of justice must begin at the micro level; it must
emerge from the grass roots. Drawing links between the movements to abolish slav-
ery and segregation, Davis (2003) asked us to imagine the abolition of prisons and
the creation of alternatives to mass incarceration with all its racist and classist corol-
laries. Davis (1998b) identified three key dimensions of this work—public policy,
community organizing, and academic research:
In order to be successful, this project must build bridges between academic work, leg-
islative and other policy interventions, and grassroots campaigns calling, for example
for the decriminalization of drugs and prostitution, and for the reversal of the present
proliferation of prisons and jails. (pp. 71-72)
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Much of this work is in progress. Organizations such as The Sentencing
Project (http://www.sentencingproject.org/), the Prison Moratorium Project
(http://www.nomoreprisons.org), Critical Resistance (http://www.criticalresistance
.org), Families Against Mandatory Minimum Sentencing, Amnesty International,
Human Rights Watch, and the Prison Activist Resource Center (http://www
.prisonactivist.org) have successfully linked a large and growing body of research
with a critique of current practices and a call for legislative and policy change.
But this latest abolition movement faces a unique challenge. The paradigm of
color-blind racism must be exposed before the deep connections between race,
crime, and political economy become transparent. Hegemonic media coverage and
misrepresentations about the reality of crime and criminal justice must be countered
by multiple voices (Davis, 2003; Entman & Rojecki, 2000; Sussman, 2002). As long
as the public course centers on crime—not race, class, or gendered racism—the true
role of criminal justice and the prison industrial complex in preserving White
supremacy in the context of advanced capitalism remains invisible. Davis (1998a)
warns us,
The real human beings, designated by these numbers in a seemingly race neutral way,
are deemed fetishtically exchangeable with the crimes they have committed.... The
real impact of imprisonment on their lives need never be examined. The inevitable part
played by the punishment industry in the reproduction of crime need never be dis-
cussed. The dangerous and indeed fascist trend toward progressively greater numbers
of hidden, incarcerated human populations is itself rendered invisible. (p. 63)
The true underpinnings of criminal justice and the prison industrial complex must
become transparent. They must be surfaced by micro-level social justice projects.
They must be surfaced via radical and relentless pedagogies of resistance; they must
be surfaced in the stories, the narratives, of political prisoners and prisoners of con-
science; they must be surfaced through the research, writing, and teaching of those
whom Mumia Abu-Jamal (2005) called “radical intellectuals” and ultimately
through the coalitions between the two that bridge the lines of difference between
freedom and incarceration, as well as those of race, class, and gender.
As noted earlier, the writings of political prisoners and prisoners of conscience
sounded the early warning about the role of the police, the courts, and prisons in eco-
nomic and political repression of people of color. These works publicly clarified the
extent to which there were political prisoners in the United States and served to raise
the consciousness of what, in 1970, were the 200,000 mostly Black and Brown
inmates in prisons and jails. Just as the writings of George Jackson, Assata Shakur,
Huey P. Newton, and the early Angela Davis inspired an earlier generation of
activists, so too do new voices rise in dissent from our prisons and jails. Leonard
Peltier, Sanykia Shakur, Paul Wright’s Prison Legal News (http://www.prisonlegalnews
.org), Marilyn Buck, and the prolific Mumia Abu-Jamal have given voice to the more
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than 2 million who are now incarcerated in increasingly harsh and isolated condi-
tions. They have made the invisible horrors of the prison industrial complex visible
and again sparked the call for resistance. They offer both an insider’s view and a
deep critique of the law. Abu-Jamal (1995) wrote of Pennsylvania’s death row,
From daybreak to dusk black voices resound in exchanges of daily dramas that mark
time in the dead zone. Echoes of Dred Scott ring in McCleskey’s opinion, again noting
the paucity of black rights in the land of the free. Chief Justice Taney sits again, rein-
carnate in the Rehnquist Court of the Modern Age.... One hundred and thirty three
years after Scott, and still unequal in life, as in death. (pp. 92-93)
The writings of many political prisoners might have remained suppressed were it
not for the efforts of scholars to bring them forward. This coalition between “organic
and radical intellectuals” (Abu-Jamal, 2005) is crucial to the uncovering of the deep
structural connections between race, political economy, and crime. The work of
Angela Davis and Joy James is exemplary here. Their extensive writings on these
matters and their careful attendance to connecting with those inside prison walls
serve as a model for future work. In Imprisoned Intellectuals, James (2003) gave
voice to the range of political prisoners and traced the common thread of resistance
across generations, nationalities, racial/ethnic differences, genders, sexual orienta-
tions, and political causes. She hopes that writing and reading will force a transfor-
mative encounter “between those in the so-called free world seeking personal and
collective freedoms and those in captivity seeking liberation from economic, mili-
tary, racial/sexual systems” (James, 2003, p. 4).
The call to social justice, especially when addressing complex and cloaked sys-
tems of racialization, requires critical and systematic documentation, the surfacing
of deep political and economic structures, and bold confrontation. It requires the
analytical tools and methods of multiple disciplines, as we have attempted to offer
here. The dismantling of the White supremacist and capitalist machinery of criminal
justice requires coalitions between intellectuals of all sorts. In the words of Mumia
Abu-Jamal (2005),
Yet this world and life itself, is broader than the ivory towers of academia. Make external
connections. Build bridges to the larger, nonacademic community. Build social, political
and communal networks.... The word “radical” means from the roots—so, build roots!
Touch base with real folks, and work for the only real source of liberty—life! (p. 179-184)
Ultimately, the realization of social justice will require still broader coalitions.
Criminal justice and the prison industrial complex represent particular manifesta-
tions of the entanglements of racialization, the law, and the global economy in late
capitalism. Truly challenging this project in racialization calls for coalitions with
those who are addressing different aspects of these foundation dilemmas. Audre
Lorde (1984) reminded us that much of Western European history conditions us to
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see human differences in simplistic opposition to each other: dominant/subordinate,
good/bad, up/down, superior/inferior. In a society where the good is defined in terms
of profit rather than in terms of human need, there must always be some group of
people who, through systematized oppression, can be made to feel surplus, to
occupy the place of the dehumanized inferior. Within this society, that group is
made up of Black and Third World people, working-class people, older people,
women, gays/lesbians, and physically different and physically challenged people.
Lorde went on to say,
Institutionalized rejection of difference is an absolute necessity in a profit economy which
needs outsiders as surplus people. As members of such an economy, we have all been
programmed to respond to the human differences among us with fear and loathing and to
handle that difference in one of three ways: ignore it, and if that is not possible, copy it if
we think it is dominant, or destroy it if we think is subordinate. But we have no patterns
for relating across our human differences as equals. As a result, those differences have
been misnamed and misused in the service of separation and confusion. (p. 115)
Most important, we must organize, continuing the legacy of struggle. We must
come together across boundaries of national identity, gender, race, class, and ethnic-
ity. We must work in alliance to realize the vision that another world is possible.
Notes
1. The extreme escalation in the female incarceration rate is new. In the United States, institutional-
ization has been highly gendered, with prisons largely reserved for men and psychiatric facilities as the
favored source of social control for “deviant women.” This is consistent with a historical pattern that has
tended to “criminalize” men and “medicalize” women. Race and class, however, have always complicated
this gendered division of punishment (see Ehrenreich & English, 1973). Women of color and women who
are poor have always been more likely to be incarcerated than their White counterparts, and so it is unsur-
prising that the current expansion of the women’s prison population has largely been at the expense of
African Americans and Latinas. As the period of late capitalism is marked by a steady decimation of gov-
ernmental funding in the areas of economics, education, and housing, these women increasingly become
an important “disposable” source of profit for the prison industrial complex (Davis, 2003).
Whereas women’s prisons of the past used to be less draconian, this is no longer the case. Women, on
average, serve longer sentences than men and are increasingly forced into harsh conditions of labor,
including, at the extreme, female chain gangs. They are often housed in more makeshift conditions,
located long distances from family and friends, denied routine medical care, and at great risk for sexual
assault by the too often male correctional staff (Chesney-Lind, 2002; Davis, 2003).
The direct and collateral consequences of imprisonment for women are also consistent with historical
patterns of exploitation and control that women of color have faced. From slavery to the present, women
of color have faced sexual exploitation, state-sponsored family disruptions, and attempts to regulate repro-
duction. Davis (2003) observed that the sexual assaults faced regularly by women in prison—in the forms
of both attacks and routine practices such as body cavity searches—echo the sexualized punishments that
accompanied slavery. In Killing the Black Body, critical legal scholar Dorothy Roberts (1997) docu-
mented the long history of legal control over the reproduction of women of color, particularly African
Americans. One of the contributing factors to the rise of the female prison population is the criminalization
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of reproduction for women of color who are poor or users of drugs. Women on welfare have been forced
into the use of Depo and Norplant and offered economic incentives for having abortions. Pregnant women
who have tested positive for substance use (usually crack cocaine) have been arrested and imprisoned for
child abuse. These arrests and prosecutions have almost invariably involved Black women, even though
they could equally apply to middle-class White women who continue to drink during pregnancies. Finally,
the overwhelming majority of women in prison have children. The incarceration of women further deci-
mates families and, in combination with new laws that speed the process of termination of parental rights,
nearly guarantees a permanent loss of parental rights. In the broader sense, the prison industrial complex
itself represents a new mechanism for controlling the reproduction of people of color. Just as it has
replaced slavery as a new source of profit, it has also replaced the older program of suppressing Black
reproduction via sterilization (Roberts, 1997) with the isolation and segregation of men and women
behind prison walls.
2. The globalization of the prison industrial complex includes not only the proliferation of the struc-
tures but abusive practices as well. The horrific abuses documented at Abu Ghraib are not an anomaly;
they represent regular practices at U.S. prisons across the nation. Amnesty International and Human
Rights Watch have documented decades-old patterns of human and civil rights abuses by local and fed-
eral police/law enforcement officers as well as prison, jail, and Immigration and Naturalization Service
detention officials. These include a variety of abusive police practices (e.g., racial profiling; excessive use
of force—including the kicking and beating of restrained suspects with fists, batons, and flashlights;
excessive use of dangerous chokeholds, hog-ties, and other restraints that have resulted in death; exces-
sive use of tasers, stun guns, and chemical sprays; excessive use of deadly force—particularly in situa-
tions involving car chases or unarmed Black male suspects; inappropriate use of strip searches; use of
sexual abuse and torture in police precincts to extract confessions; and prison procedures [e.g., dangerous
use of restraints—including four-point restraints, the “rail,” and the restraint chair—that have resulted in
multiple deaths; the shackling of pregnant inmates; use of nudity, strip searches, and sexual humiliation
and assault as a source of social control; failure to curtail sexual assaults on both male and female inmates
by other inmates and guards; beatings by guards; denial of medical care or treatment; use of dogs, tasers,
and chemical sprays; excessive use of super-max and isolation confinement; and denial of rights on reli-
gious freedom, communications, and right to counsel]) (see Amnesty International, 1998; Eisner, 2004;
Fellner, 2004; Human Rights Watch, 1998, 2000).
International nonprofit human rights organizations have consistently claimed that U.S. police and
prison practices are in violation of several international treaties and protocols including, but not limited
to, the Geneva Conventions, International Covenant on Civil and Political Rights, Convention Against
Torture, International Convention on the Elimination of All Forms of Racial Discrimination, UN
Universal Declaration of Human Rights, UN Body of Principles for the Protection of All Persons Under
Any Form of Detention, UN Standard Minimum Rules for the Treatment of Prisoners, UN Code of
Conduct for Law Enforcement Officials, and UN Basic Principles on the Use of Force and Firearms by
Law Enforcement Officials. Human Rights Watch observed in a May 14, 2004, press release,
Perhaps if photos or videotapes of abuse in U.S. prisons were to circulate publicly, Americans
would be galvanized to protest such treatment as they have the treatment of Iraqi prisoners. Absent
such graphic and unavoidable evidence, it is all too likely that abuse will continue to be a part of
many prison sentences.
Or perhaps they would continue to be publicly and legally ignored. In a chillingly accurate observation
made in his dissent to the recent decision of Johnson v. California (2005), Justice Clarence Thomas noted,
“The Constitution has always demanded less within the prison walls.”
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Rose M. Brewer is the Morse Alumni Distinguished Teaching Professor of African American & African
Studies at the University of Minnesota at Twin Cities. She has written extensively on Black families; race,
class, and gender; and public policy and social change. Her most recent coauthored book is The Color of
Wealth (2006, New Press).
Nancy A. Heitzeg is an associate professor of sociology and a codirector of the Critical Studies of
Race/Ethnicity program at the College of St. Catherine, St. Paul, Minnesota. She is the author of Deviance:
Rule-Makers and Rule-Breakers and has written and presented widely on race, class, gender, and social
control; formal, medical, and extralegal color-blind racism; and social movements/social change.
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