By Russell Facente

Racism is too large a topic, too intertwined in history, policy, and psychology to adequately describe in a blog. But no topic can be too large to learn about. Being a law school blog, I will attempt to show that racism was a part of America’s founding laws, and through our legal system it remains prevalent despite the abolition of race-based laws.  After setting the starting point by providing some definitions, I will speed through the origins and history of American laws to hopefully make apparent that racism has adapted in our criminal justice system and not withered away.

So, like any good piece of law, let’s start with defining the terms, adopted from the work of Ibram X. Kendi:[i]

Racism is a marriage of racist policies and racist ideas that produces and normalizes racial inequities. Okay, so what are racist policies and ideas? We have to define them separately to understand why they are married and why they interact so well together. . . .“‘Racist’ and ‘antiracist’ are like peelable name tags that are placed and replaced based on what someone is doing or not doing, supporting or expressing in each moment. These are not permanent tattoos.”[ii]

A racist idea is any idea that suggests one racial group is inferior or superior to another racial group in any way. Racist ideas argue that the inferiorities and superiorities of racial groups explain racial inequities in society.  . . . An antiracist idea is any idea that suggests the racial groups are equals in all their apparent differences—that there is nothing right or wrong with any racial group. Antiracist ideas argue that racist policies are the cause of racial inequities.[iii]

A racist policy is any measure that produces or sustains racial inequity between racial groups. An antiracist policy is any measure that produces or sustains racial equity between racial groups. By policy, I mean written and unwritten laws, rules, procedures, processes, regulations, and guidelines that govern people. There is no such thing as a nonracist or race-neutral policy. Every policy in every institution in every community in every nation is producing or sustaining either racial inequity or equity between racial groups.[iv]

Terms defined, a little “legislative history” to provide context for the law:

The Concept of Race

The concept of race was created to justify the degradation and enslavement of human beings,[v] to artificially gain superiority as a group (e.g. White Supremacy) and to give the product (i.e. profits) of labor not to the laborer but to the master. Around 350 BCE, Aristotle, devised his “natural theory” to justify slave-owning practices by the Greeks (his people). His theory of human hierarchy stated that extreme hot or cold climates created inferior people “by nature incapable of reasoning”[vi] Alternate hierarchy theories were developed by Christians in Europe to assert White Supremacy and justify colonization and slavery. These Christians pointed to the “curse of Ham” as Holy scripture reasoning for this racial “curse theory.” This theory developed a caste system with White Christians at the top, then non-Christians in Europe, then Native American and Asian peoples, and at the bottom, dark-skinned Africans.

Across the ocean, from Europe to the colonies in America, White Christian colonists were looking for a way to maximize tobacco production (and profit) at Jamestown.  With racist curse-theory ideologies already established, the import of Africans became a major commodity cloaked in religious righteousness.[vii] The racist ideologies, which serve a purpose of power and wealth consolidation, became racist policy enshrined in states’ law. The U.S. Constitution (argued as “not-racist” by many) conspicuously manages to condone slavery with the fugitive slave clause, three-fifths compromise, and the slave trade clause, which prohibited the banning of slave importation for 20 years. By not eliminating slavery, the Constitution perpetuates the racism institutionalized in the states.

Now, to the law itself:

Keeping Racism Legal While “Abolishing” Race-based Law

Slavery  Black Codes — Jim Crow — Mass Incarceration

After more than 200 years of legal slavery, the last slaves were set free on June 19th, 1865. The effects of slavery didn’t end of course, and the racial ideologies that rationalized slavery didn’t disappear either. Free Blacks[viii] (“freedmen”) could generally not read well (as it had been illegal to teach slaves to read in many states) and had no money or home to speak of.[ix] Finding gainful employment was extremely hard; if one could find an employer that would hire non-whites, one would still have trouble getting a job without being able to read. Nine southern states enacted vagrancy laws, essentially convicting persons who did not hold a job.[x] These laws were the start of the “black codes.” Black codes, like these enacted in South Carolina, were laws specifically targeting Black people to keep them from achieving equality with whites. When the Supreme Court decided Plessy v. Ferguson (the separate-but-equal doctrine), many black codes were eliminated. But the separate “legal distinction” only led states to codify the Jim Crow laws, the legalization of segregation and unequal treatment, until prohibited by Brown v. Board of Ed. in 1954 and the Civil Rights Act of 1965.

In response to the elimination of segregation, racist leaders shifted to incarceration to separate Blacks from whites. One of the most famous racially coded yet facially neutral policies was the “war on drugs.” John Ehrlichman, President Nixon’s aide on domestic affairs, admitted that Nixon’s “war on drugs” was explicitly made to disrupt the anti-war effort and Black leadership.  President Reagan picked up the torch of racism from Nixon and created stiffer penalties for crack over powdered cocaine. This also came at a time when unemployment was extremely high for Black youth, but society deemed the drug user the criminal, instead of the Reagan-CIA backed Contras supplying cocaine into the U.S.  (Compare this with the current opioid crisis—which affects more whites—where the drug user is the victim and the drug-supplying pharmaceutical companies are the criminals.)  Follow this with President Clinton’s “Three Strikes” law, which created longer and eventually lifetime sentences for repeat—and, more often than not, non-violent—offenders. While no one in the Clinton administration has said the Three Strikes law was racially motived (like Ehrlichman had) the Clintons did use racially-coded language, and the law did expand the already racially-biased sentencing system. If using Ibram X. Kendi’s definition of racist policy, above, the three strikes law was definitely racist because it amplifies the racist policies already in place.

Now let’s look back to the “end of slavery”: the 13th Amendment. The Amendment reads: “Neither slavery nor involuntary servitude . . . shall exist within the United States, or any place subject to their jurisdiction.” But, that omitted part reads: “except as a punishment for crime whereof the party shall have been duly convicted.” Textually, slavery is still legal under the 13th Amendment, so long as the person is serving for a crime. Thanks to mass incarceration—with a heavily disproportionate Black and Brown population—it is legal for prisoners to labor in production jobs (e.g. furniture making, product packaging) for only $0.00 to $1.15 per hour[xi] in the United States. As with slavery, the product (i.e. profits) of the laborer transfers to the master—a labor industry valued at a $2-billion-dollars.

Stacking “Neutral” Policies to Restore Racist-policy Efficiency

As classical racism (e.g. White supremacy) is exposed as the illegitimate excuse to control another human based on false premises, racist policies have taken on more facially neutral language, to cloak the continuation of the same racist policies. Sure, by removing the race-based language from laws, there will be individuals of other races snared by the “neutral policy,” but a less-efficient racial policy is still a policy with the intent and effect of maintaining racial inequality and racial hierarchy.

By layering less-efficient (i.e. “neutral”) laws and processes, the ability to target individuals based on race is restored, if not amplified. Let’s look at the current criminal system. Every neighborhood has police patrols. Every neighborhood has marijuana use (and a mere 2% difference in usage by race). Driving laws apply equally to everyone. Search and seizure rights apply equally to everyone. Sentencing guidelines do not include race as a factor.

Yet despite this neutrality, the criminal system allows for a lot of discretion. Each time discretion is available, a racist idea (sometimes in the form of  implicit bias) can be freely injected.  Unlike with employment discrimination, where the Supreme Court has said disparate impact based on race is unlawful, the Supreme Court has foreclosed the ability to argue racial discrimination and pretext through the entirety of the process by preserving discretion by the state and requiring defendants to prove clear discriminatory intent. (In Whren, the Court held that so long as a stop was “objectively justifiable behavior” any [racial] motive by the officer is of no relevance.[xii])

Police have the discretion to stop a vehicle, or stop a pedestrian under a stop-and-frisk policy.  Police have the discretion to issue a citation or a verbal warning.  Police have the discretion to initiate a search if they believe they detect a faint smell of marijuana. Police have the discretion to arrest or simply confiscate any contraband. A prosecutor has discretion to dismiss, prosecute, or offer a plea deal. Prosecutors may strike “a jury of [Black] peers” in all but the most extreme cases. A judge has discretion to go high or low within the sentencing guidelines. Once a law has been broken (or a mistake is made by an officer that a law has been broken) any outcome less-than the maximum sentence is leniency based on some factor that need not be articulated or proven.

But, when looking at the figures of incarceration versus the figures of criminality (e.g. drug use), racial bias is a simple, easy to inject, and historical reason for excessive policing and incarceration of Black and Brown people. While each separate stage can be—and often is—analyzed to show race is not the conclusive factor, the compounding of layers of non-reviewable discretion creates a policy framework that maintains racist ideas. If racism can exist and thrive just below the surface, and if the statistical results at every level show racial disparity, can the criminal system really be “not racist”?

I guess we haven’t come that far.

Check Out More Law & Race Resources:

For educational, informational, and inspirational resources on race, including short easy reads, dense treatises, poems—and even chart-topping music—visit the AALS Antiracist Clearinghouse

Info on current racial disparities in policing and prosecuting—visit the Academy for Justice

For Racial Justice Resources—visit the ASU Law Library’s own collection

[i] I’ve chosen to use definitions popularized by Ibram X. Kendi, and here’s why: An object in motion will stay in motion, unless an equal-but-opposite object stops it. Racism is an object in motion, it has been for millennia. “Not-racist” is a concept that neither accelerates, nor decelerates racism. It takes an equal-but-opposite force (anti-racism) to stop racism.

[ii] Ibram X. Kendi, How to Be an Antiracist 23 (2019) (emphasis added)

[iii] Id. at 18.

[iv] Id. While the notion that no policy can be nonracist or race-neutral may be controversial, the controversy is generally asserted in the effort to provide excuse for “race-neutral” policies that sustain the current system that was founded on racist ideas.  Indeed, a new policy may or may not have racist (or antiracist) intent, but must be understood to have a racist (or antiracist) outcome due to its perpetuation of the original racist system.

[v] Ibram X. Kendi, Stamped from the Beginning 17 (2017)

[vi] Id.

[vii] Ibram X. Kendi, Stamped from the Beginning 48 (2017)

[viii] Why the capital B?   “Blacks, like Asians, Latinos, and other ‘minorities,’ constitute a specific cultural group and, as such, require denotation as a proper noun.” Kimberlé W. Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1332 n.2 (1988). Other organizations are catching on. Similarly, “white” might refer to skin color of people with vastly different cultures, but “White” refers to a specific cultural group—one with an ongoing history of subordinating other groups through various forms of oppression including war, colonization, slavery, and policing. (For example, Irish and Italian descendants in America may have always been white, but not always considered White.)

[ix] W.E.B. DuBois, Black Reconstruction in America (Simon and Schuster, 1999) (“They had been freed practically with no land nor money, and, save in exceptional cases, without legal status, and without protection.”)

[x] Michelle Alexander, The New Jim Crow 35 (The New Press, 3d ed. 2020).

[xi] There is no way to save or invest these meager earnings; prisoners must purchase essential items at the commissary and pay extraordinary rates for phone calls.

[xii] Whren v. United States, 517 U.S. 806, 812 (1996)