Neo-slavery and Racial Caste in a Post-Civil Rights America

Accept as Punishment for a Crime?: A Historiography of Neo-slavery and Racial Caste in a Post-Civil Rights America

When the Union government passed the thirteenth amendment to the United States Constitution in January of 1865, they intended for the term “slavery” to be listed in the constitution only once—for its eradication. However, the text of section 1 of the amendment, which outlawed slavery, had one significant loophole in it: “except as a punishment for crime.”1 The text of the amendment makes clear that the institution of slavery or involuntary servitude was permissible as punishment for criminal activity that had been convicted in a court of law under the bill of rights under the constitution. Although the institution of slavery had been eliminated in name from the United States, the amendment that removed it also provided a road map for the dominant group of white elites to carry on the institution. One hundred years after the passing of the thirteenth amendment, through the Civil Rights movement, African Americans marched in protest of a codified de jure system of racial subjugation that had arisen in slavery’s absence in the American south. The movement used non-violent civil disobedience to achieve tremendous social progress in the form of school desegregation, the legal protection for black minorities through the Civil Rights Act of 1964 and federal defence against voter discrimination with the Voting Rights Act of 1965. Notwithstanding the tremendous leaps forward marked by this movement, the assassination of Dr. King and the election of Richard Nixon in 1968 marked its decline.

The historical period that began in 1968 was characterized by a shift towards an individualistic ideology of colourblindness in which the race of an individual was ignored so that actions could be perceived as equal. During this period the number of Americans that were incarcerated multiplied five times comprising a demographically disproportionate number of African Americans. Thus, a system of exclusion was created around the concept of mass incarceration that deprived convicts of equal access to employment, public housing, and the right to vote amongst others. In light of the neutral racially coded language which had become commonplace during the Civil Rights movement, historians throughout the late twentieth century debated the significance of the “carceral state” and its relationship with race. However, it was not until the twenty-first century that revisionist historians began to argue that mass incarceration had re-imagined the racialized oppression of slavery and segregation (Jim Crow) to institutionalize racial oppression based on internalized racial biases. While historians have been divided on terminology, the systemic and institutionalized oppression of African Americans has most often been referred to as the “New Jim Crow” or the “Racial Caste” thesis. This paper will argue that in the aftermath of the 1964 Civil Rights Act and the 1965 Voting Rights Act, the United States judicial system evolved from a Jim Crow, the colour-coded structure of racial discrimination into a racial caste system that masked its subtleties behind a colourblind ideology that does not explicitly identify colour in policy but acts on historical implicit racial biases that relegate African Americans to the margins of American society. Through a legal history-oriented analysis of the historiography of law enforcement, criminal prosecution, and incarceration in the late twentieth, this paper will assess the veracity of mass incarceration as a form of neo-slavery and racial caste.

In the aftermath of the Civil Rights movement, a fundamental ideological shift occurred in the United States with the emergence of an individualistic colourblind ideology impacting how mass incarceration would be justified as a mechanism of racial domination. The concept of colourblindness was taken from its use in the historical Supreme Court Brown v. Board of Education decision from the in the 1950s which desegregated schools in the south. In particular, the Reagan administration adopted the colourblind terminology and conflated it with the neoconservative backlash against anti-racism.2 The Reagan administration (1981-1989) relied heavily on the false equivalency between colourblindness as an argument for school desegregation and colourblindness to void the collective redress of grievances that was sought through the Civil Rights movement. Thus, President Reagan continually advocated for “a colourblind society” in his public remarks on race such as a radio address he gave on January 20, 1986—the first-ever Martin Luther King Jr. national holiday—when he said, “we’re committed to a society in which all men and women have equal opportunities … a colourblind society … that, in the words of Dr. King judges people ‘not by the colour of their skin, but by the content of their character.’”3 Reagan’s colourblindness fit into the larger movement of neoliberalism that focused on the individual rather than on the collective goals of society emphasizing individual equality while denying the social, economic, and historical contexts that structurally positioned some at the bottom of society.4 The post-civil rights era in American history was marked by the conceptualization of colourblindness that found its way into every facet of American life including mass media, politics, and the law. Historians who have studied the transitory period between the segregation era and the post-civil rights era have questioned the legitimacy and intentions of a colourblind outlook and its relationship with racism.

Historians and scholars studying the post-civil rights era have examined the changes that have taken place on racism which has led them to discover that racism has moved from overt and explicit racism through laws to subtle social attitudes about African Americans that are largely enabled and advanced through the idea of colourblindness. When the Civil Rights Act and the Voting Rights Act of the mid-1960s were passed to reinforce the post-Civil War amendments to the U.S. Constitution, the explicit attitudes of racialism were largely removed from mainstream American society. However, the racist beliefs that Americans held were internalized and shifted to racially coded language that was fueled by the racial aversion and fears that continued to be held against blacks. This led to support for “punitive crime policies, and opposition to preventive policies to aid African Americans.”5 The racially coded language that led to these types of beliefs was underpinned by a racial project that affirms colorblindness as a form of white backlash against the demands for racial equality that emanated from the 1960s. Tahseen Shams argues that proponents of colorblindness argue that “reverse racism” has led to the favouring of blacks over whites which demonstrates that it reinforces white privilege and the oppression of non-whites in American society.6 The resurgence of traditional racist views in American society is a conclusion that many scholars share about the colourblind vernacular that was commonly employed in the post-civil rights era. Joe Feagin has argued that the colourblind rhetoric has merely masked the “still blatantly racist views of Americans of colour that have continued in most whites’ framing … many old racist ideas and other racial frames … have persisted in forms that are only modestly changed.”7 These conclusions about colourblindness generally draw two important distinctions from the Jim crow segregationist era which preceded it. First, that the racial frames that permitted the domination of African Americans remained largely unchanged and second. the language that was commonly used in society to describe those racial frames has shifted to use terminology that is neutral concerning race—racially coded language.

The coming of age of the new system of racial caste in the aftermath of the civil rights era was in large part due to a subservient Supreme Court that had taken a hard-right turn by the end of the Reagan administration. A series of cases brought before the Court to ascertain the contemporary interpretation of several clauses in the bill of rights further eroded the social standing of African Americans in society leading to a greater opportunity for racial profiling. In many cases that pertained to civil rights and race, the opinion of the court relied heavily upon colourblindness to subtly, yet distinctively articulate the dominant class’s retort to civil rights activists. In a 1993 decision that pertained to racial gerrymandering of Congressional districts, Justice Sandra Day O’Connor, speaking on behalf of the Court concluded that “racial classifications of any sort pose the risk of lasting harm to our society” adding that “racial gerrymandering, even for remedial purposes … threatens to carry us further from the goals of a political system in which race no longer matters.”8 The court has relied on this colourblind rhetoric to justify its opinion in cases that disproportionately affect African Americans and infringe on their civil rights. However, since the court’s ideological turn towards the right in the late 1980s, there has been a consistent theme that any consideration of race brings the country away from colourblindness and the hope of an eventual post-racial society. This idea, which is eerily similar to the concept of “reverse racism” was also articulated by the Chief Justice, John Roberts, in 2007 who said on behalf of the Court said, “the way to stop discriminating on the basis of race is to stop discriminating on the basis of race”, implying that considering race for redress purposes is also discriminatory intent, echoing the ideals of colourblindness that were engrained into the court’s conservative majority.9 This ideology that devalued the necessity and place for considering race as a factor in the interpretation of civil rights was made clear in several cases that reached the court in the late 1980s and 1990s.

One of the most well-known cases that the court decided on race and the justice system was the McCleskey v. Kemp (1987) case which pertained to the sentencing procedures in Georgia. The case concerned the undue influence of the race of the victim and the defendant in the sentencing of a capital offence. Although the Supreme Court was presented with scientific evidence that demonstrated significant bias in sentencing capital offences with a white victim and black defendant, they rejected the claim. The Court decided unless it was presented with “exceptionally clear proof” that prosecutors had intentionally discriminated against Mr. McCleskey based on race, they would not conclude that the sentence was a violation of the fourteenth amendment’s equal protection clause.10 Many scholars have rightly pointed to the McCleskey opinion as a tacet acknowledgment that racial discrimination exists in the federal justice system—especially as it pertains to sentencing. Elizabeth Hinton has noted that the decision declared racial profiling acceptable because the Court was afraid that the opposite decision would open pandora’s box pertaining to racial discrimination saying, “If we accepted McCleskey’s claim that racial bias had impermissibly tainted the capital sentencing decision … we could soon be faced with similar claims as to other types of penalty.”11 The McCleskey case made legal claims of racial profiling virtually impossible to prove without a clear thread of documents that demonstrate specific racial targeting—something that is extremely difficult when racism is generally acted through implicit bias.

Most historians and legal scholars point to the congruency between the decline of the civil rights movement, the neoliberal “war on drugs” and the rise of mass incarceration to illustrate a renewed wave of racial subjugation in the United States. The “war on drugs” began as a subtle component of the Republican party’s “southern strategy” in the 1960s which sought to court southern conservatives with a “law and order” component to their platform. But in the presidential campaign of 1968, Richard Nixon and George Wallace campaigned fiercely on the “law and order” message with ad campaigns that associated violence in protests with a breakdown of peaceful societal cohesion—together they received 57% of the vote.12 Once elected, Nixon wasted little time equating drugs and crime by capitalizing on the white middle-class family’s uneasiness with the Civil Rights movement of the 1960s through his moral rhetoric. Doris Provine has observed that Nixon’s rhetoric “soon came to dominate and impoverish public discourse about crime and drugs … suggest[ing] that the root of the problem was youthful defiance of authority.”13 The rhetoric about crime implied victimization which was disseminated through the media and politicians campaigning for office who capitalized on the historical imagery of black male criminality to justify an unprecedented level of imprisonment.14 Michelle Alexander has argued that the “War on Drugs”, officially declared by Ronald Reagan in 1982, was a “Republican Party strategy using racially coded political appeals on issues of crime and welfare to attract poor and working class white voters” who had felt threatened by the advancements in racial progress through desegregation, busing, and affirmative action.15 The significance of the republican party’s messaging in the post-civil rights era was the use of historical racial stereotypes to articulate their message while avoiding to use the racialized language from the era of segregation. This has allowed the impacts of the drug war—notably mass incarceration of black males—to take on the appearance of a race-neutral intent.

The system of mass incarceration which has led to the detention of an unprecedented number of black Americans was multi-faceted and began through distinct changes with the policing aspect of law enforcement. Legal scholars have noted the distinct ideological shift to the right that the Supreme Court underwent by the mid-1980s leading to an expansion of policing powers through the court’s jurisprudence. In 1968, the Court ruled in Terry v. Ohio that a police officer has the legal authority to conduct a warrantless search when they observe “unusual conduct by someone the officer reasonably believes to be dangerous and engaged in criminal activity.”16 Although the decision seemed to be reasonable in 1968, it has been part of a group of decisions made by the Court which have expanded the power and deference under the law that is afforded to police officers. Bennett and Walker note that “since the 1960s, racial prejudice often expresse[d] itself as anti-black effect, or an aversion to, or fear of, African Americans as opposed to open hostility towards them, known as ‘implicit bias.’”17 The combination of expansive policing powers and implicit racial bias make up a significant portion of the modern racial caste system because it relies on the unfettered discretion of police powers to selectively enforce drug laws.18 As the public messaging of the drug war amplified the message of fear that was implicitly connected to African American urban communities, the powers that were afforded to policing through both federal legislation and the courts only grew stronger.

By the late 1980s, Congress had passed two key laws that expanded the reach of the federal justice system and used police officers as foot soldiers in Reagan’s war on drugs. The 1986 Anti-Drug Abuse Act was the first major piece of legislation to overhaul the federal government’s approach to drugs. An analysis of the congressional record demonstrates that the bill’s most loyal supporters were approaching the drug issue that existed from a raced mindset. While the bill was being debated in committee, numerous news articles were placed in the congressional record by House Republicans in an attempt to define the drug problem along racial lines through the use of colourblind racially coded language. The articles were classified into three general themes: first, crack cocaine was increasingly moving from black ghettos to white suburban neighbourhoods; second, crack dealers were most often black men; third, the lives of young people with bright futures were at risk as a result.19 The predominant effect of the legislation was that it targeted specific types of drugs and specific quantities of those drugs to establish the mandatory minimum sentences that replaced the sentencing guidelines that previously provided federal judges with discretion. Some scholars argue that the law implicitly targeted African Americans because the minimum penalties for the use of crack cocaine were much more extensive than those for powder cocaine—the latter commonly used more by whites.20 It is difficult to arrive at a definitive conclusion about the potential racialized intent of the lawmakers in passing these bills which exemplifies how the racially coded language and implicit racial bias create difficulties for historians who want to question the existence of a new racial caste system through incarceration. While the specific intent of lawmakers is difficult to assess, the congressional record demonstrates that little attention was given to the potential disproportional harm that the law could cause minority communities. When Congressman John Convers sought to incorporate a racial justice act into the bill to add protections for African Americans who received a death penalty sentence for severe drug offences, he could not obtain the support of his caucus. The final vote tally was 346-11 and six out of the eleven votes against the legislation were from members of the black caucus.21 While it is likely that the support for the bill was an amalgamation of explicit racism, implicit racial bias, and drug war hysteria, the sentencing provisions in the legislation conveyed the absence of a coherent strategy on the purpose of imprisonment.22 In its place, imprisonment for drug use became a mechanism that exacerbated societal inequalities that divided Americans along racial lines while contributing to a larger system of oppression that wove together economic realities and racist subordination through an appearance of colourblind discourse.

The drug war legislation that inserted harsh prison terms through mandatory minimum sentences in the place of judicial discretion in sentencing was only one aspect of the carceral system that has affected African Americans disproportionately. For it to be effective and efficient, it required a mechanism to expedite the process of charging and convicting accused drug offenders which occurred through the office of the federal prosecutor. Angela J. Davis who is the former director of the Washington D.C. public defender’s office has written extensively on the process of charging and plea bargaining. In Arbitrary Justice, she writes that federal prosecutors tended to overcharge defendants with crimes that they know they couldn’t prove in court before a jury; rather, they used the long list of charges to scare defendants into accepting plea bargains for only one or two of the charges—even in the case of innocence.23 Alexander explains the relationship between plea bargaining and the mass incarceration of African Americans by drawing on the expansive minimum sentences put into place with the 1986 legislation. She notes that the U.S. Sentencing Commission has described the value of minimum sentences as “a bargaining chip to be given away in return for the resource saving plea from the defendant to a more leniently sanctioned charge.”24 The results of this process have led to enormous levels of incarceration amongst African American males, which some like Ian Lopez, argue is a racialized form of mass incarceration caused by “extremely high rates of subjection to the carceral system and the highly disproportionate targeting of nonwhites.”25 Thus, minimum sentences act in collaboration with overcharging and plea deals to capitalize on the disparity between those who can afford legal representation and those who must lean on overburdened public defenders to draw more into the carceral system.

The difficulty in assessing the existence of a deliberate racialized system of criminal justice is the paradox that accompanies the era of colourblindness which many have argued provides a rhetorical defence for accusations of overt racism in the criminal justice system. Nonetheless, the profound disparities in mass incarceration between the number of white Americans and the number of black Americans imprisoned cannot be discounted. Loic Wacquant theorizes that mass incarceration is the fourth “peculiar institution” in the history of the United States, preceded by Slavery, Jim Crow, and the ghettos in the urban north which all acted as instruments of “extraction of labor and social ostracization.”26 The idea that incarceration is a form of bondage and societal domination that is similar to, yet adopted from slavery to work within the confines of contemporary society is also echoed in the arguments of the historian Lawrence Friedman who argues that the history of criminal justice is a history of power.27 Thus, the history of the criminal justice system in the post-civil rights era is emblematic of how the dominant groups of society use their power to subject others to dominance. Wacquant argues that racially disproportionate imprisonment leads to the creation of a monster in the collective memory of American society because it creates a new definition of race that merges blackness with crime to create a “black monster.”28 This argument is echoed by many scholars who argue that the disproportionate numbers of African Americans that were swept up into the criminal justice system prove the creation of an undercaste of black Americans.

Throughout the three-decades which followed the Civil Rights movement, the changing laws about drug charges and the enforcement of drug laws led to a tremendous number of disparities in the prison population of the United States. Many are quick to point to the fact that as a result of the war on drugs, the United States had a higher rate of incarceration at the beginning of the twenty-first century than any other nation of the world at any time including South Africa during apartheid and Russia during the pinnacle of the gulag.29 Further, the racial disparities in mass incarceration that arrived with the demise of legal segregation were equally perplexing. By the end of the century, one in fourteen African Americans were locked up and half of the inmates in American prisons were African American despite only accounting for 13% of the population. A 1989 study found that African American males between the ages of 20 and 29 had a one-in-four chance of being incarcerated—a figure which digressed to one-in-three by 1995.30 Dr. Ibram X. Kendi notes that although blacks accounted for 62.7% of drug-related charges by 2000, the National Household Survey on Drugs found that an identical 6.4% of blacks and whites were using illegal drugs.31 Kendi’s observation helps to trace the racial disparity in prison populations to the disparity in drug-related law enforcement which tended to be localized to black neighbourhoods as a result of the Constitutional permissibility of racial profiling in Terry v. Ohio. The racial disparities in the carceral system extend beyond simple statistics of incarceration because the nature of the system encompasses individuals who are awaiting trial, imprisoned, or on parole. In comparison to white Americans, blacks experience a disparity of 7 to 1 in the system of incarceration which is not as extensive as it is in other levels of society such as education, housing, health care, or employment where the ratio is 3 to 1 or 2 to 1.32 Overall, the racial disparities in the enforcement of drug offences and imprisonment lead to questions about the nature of incarceration concerning race in a nation that has a traceable history of racialized subordination.

In consideration of the progress that took place during the Civil Rights movement on matters of race followed by the emergence of a system of mass incarceration that disproportionately affected African Americans, many scholars have theorized about the way that race impacted American society. For instance, Derrick Bell argued that “the interest of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites” adding that racial remedies will occur if they “secure, advance, or at least [do] not harm societal interests deemed important by middle and upper-class whites.”33 According to Bell’s “interest convergence” theory—which fits into the larger framework of Critical Race Theory (“CRT”)—the progress in civil rights that occurred during the 1960s took place because the interest of black Americans converged with that of whites, but as soon as that reality shifted in the 1970s and 1980s, racial progress was stymied. This idea is also seconded by the critical race theorist Kimberly Crenshaw who points out “neoconservative doctrine singles out race-specific civil rights policies as one of the most significant threats to the democratic political system … urg[ing] an end to class-based remedies … [and] to limit remedies to … ‘actual victims’ of discrimination.”34 An analysis of the legislation, jurisprudence and judicial process leading to mass incarceration beginning in the 1970s and increasing by the mid-1980s through the lens of CRT demonstrates that colourblindness is inherently rooted in race because it continually seeks to validate the domination of African Americans.35 The centrality of a race consciousness is essential for the colourblind argument because it facilitates the rationalization of the contradiction between the ideals of racial progress and the dismantling of the Civil Rights era progress.

As scholars and historians have assessed the post-civil rights era, there has been a clear body of scholarship about the rise of the system of incarceration as a replacement of both the institution of slavery of the nineteenth century and racial segregation in the earlier twentieth century. While scholars generally agree on the inequality and injustice that pervades the mechanisms of the United States justice system, there is more disagreement and discussion about the level to which it is an intentional system of caste and, if so, what its proper terminology should be. Many scholars such as Wacquant believe that the system of mass incarceration is a mechanism in which the dominant class of American society can elevate themselves over the lower classes; however, these scholars have debated the best term to use to describe this system. Chris Barker argues that the term “mass incarceration” should be replaced with the term “penal regime” because the term suggests a “more intuitive inclusion of patterns … over-criminalization of property crimes; selective law enforcement using stops, consent searches, and arrests; harsh sentences, sentencing enhancements, and mandatory minimums.”36 On the other hand, Wacquant argues for the title “mass incarceration” because it “induces the civic death of those it ensnares by extruding them from the social compact” which he compares to the way slavery sought to exclude imported Africans from the social compact of colonial society.37 As scholarship and revisionist scholarship continues to emerge on the topic, there will undoubtedly be more consensus towards a specific title for this system of subordination; however, what is clear is that scholars generally agree that jim crow segregation has been remoulded into a racial caste system through incarceration.

In the thirty years which followed the end of the Civil Rights movement, the advancements made by protestors seem to have been washed away through the rise of the colourblind ideological system which enables racist policies to remain unchanged if advanced through a set of implicit racial biases and racially coded language. Thus, the ideas of colourblindness and the war on drugs led to the enactment of laws, prosecutorial policies and jurisprudence that seemed to disfavour any consideration of race while creating and exacerbating the racial inequities that already existed in American society. This has resulted in diminished civil liberties under the bill of rights such as the unreasonable searches or seizures clause of the fourth amendment or the equal protections clause of the fourteenth amendment. Additionally, the reduced civil liberties have enabled law enforcement to target African American communities whether intentionally or through implicit racial bias—bringing a large number of black males into a justice system that is disproportionately disadvantageous to African Americans. The disproportionate number of African Americans that are searched and arrested on minor charges then correlates into a disproportionate number of inmates in federal jails because of the harmful prosecutorial practices of overcharging and plea deals. As indicated, many historians and researchers have pointed to the number of Americans that were in prison, including the disproportionate number of African Americans, to demonstrate how prisons were used as a way of control in contemporary American society. The changes in the legal mechanisms that controlled African Americans from Jim Crow into the war on drugs presents a pattern of racial intimidation and domination that has created a racial caste system that is malleable enough to evade explicit historically racist language, yet rigid enough to ensnare a vast number of African Americans. Consequently, a system of racial caste has been created through the expansive drug laws that allow for the mass incarceration of African Americans. This system of mass incarceration is seen by many as a new form of slavery tolerated because the spirit of the thirteenth amendment never sought to outlaw slavery as a punishment for a crime regardless of who is deciding what is a crime and what is not a crime.

Notes

1. U.S. CONST. Amend. XIII, §1.

2 Matthew D. Lassiter, "The “Color-Blind” Inversion of Civil Rights History," Revue française d’études américaines 113, no. 3 (2007): 69.

3. "Radio Address to the Nation on Martin Luther King, Jr., and Black Americans," Camp David, January 18, 1986.

4. Lani Guinier, Lift Every Voice: Turning a Civil Rights Setback into a Strong New Vision of Social Justice (New York, NY: Simon & Schuster, 1998), 89.

5. Dylan Bennett and Hannah Walker, "Cracking the Racial Code: Black Threat, White Rights and the Lexicon of American Politics," American Journal of Economics and Sociology 77, no. 3-4 (2018): 697-98.

6. Tahseen Shams, "The Declining Significance of Race or the Persistent Racialization of Blacks? A Conceptual, Empirical, and Methodological Review of Today's Race Debate in America," Journal of Black Studies 46, no. 3 (2015): 288.

7. Joe R. Feagin, The White Racial Frame: Centuries of Racial Framing and Counter-Framing (New York: Routledge, 2010), 97.

8. Shaw v. Reno, 509 U.S., 657 (1993).

9. Parents Involved in Community Schools v. Seattle School District, 551 U.S., 748 (2007).

10. Angela J. Davis, "Prosecution and Race: The Power and Privilege of Discretion," Fordham Law Review 67, no. 1 (1998): 48.

11. Elizabeth Kai Hinton, From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America (Cambridge, Massachusetts: Harvard University Press, 2016), 326.

12. Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: New Press, 2010), 46-47.

13 Doris Marie Provine, Unequal Under Law: Race in the War on Drugs (Chicago: University of Chicago Press, 2007), 101-02.

14. Policing the Black Man: Arrest, Prosecution, and Imprisonement, ed. Angela J. Davis (New York, NY: Vintage Books, 2017), 35.

15. Michelle Alexander, "The War on Drugs and the New Jim Crow," Race, Poverty & the Environment 17, no. 1 (2010): 77.

16. Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, 63.

17. Bennett and Walker, "Cracking the Racial Code: Black Threat, White Rights and the Lexicon of American Politics," 697.

18. Butler Paul, "One Hundred Years of Race and Crime," The Journal of Criminal Law & Criminology 100, no. 3 (2010): 1048.

19. Provine, Unequal Under Law: Race in the War on Drugs, 113-14.

20. Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, 46.

21. Provine, Unequal Under Law: Race in the War on Drugs, 116-17.

22. Marc Mauer and Michael Coyle, "The Social Cost of America's Race to Incarcerate," Journal of Religion & Spirituality in Social Work 23, no. 1-2 (2004): 11-12.

23. Angela J. Davis, Arbitrary Justice: The Power of the American Prosecutor (New York: Oxford University Press, 2007), 33, 43.

24. Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, 88.

25. Ian F. Haney López, "Post-Racial Racism: Racial Stratification and Mass Incarceration in the Age of Obama," California Law Review 98, no. 3 (2010): 1028-29.

26. Loic Wacquant, "From Slavery to Mass Incarceration: Rethinking the ‘Race Question' in the US," New Left Review, no. 13 (2002): 42.

27. Lawrence M. Friedman, Crime and punishment in American history, ACLS Humanities E-Book., (New York: BasicBooks, 1993), 10.

28 Wacquant, "From Slavery to Mass Incarceration: Rethinking the ‘Race Question' in the US," 56.

29 Gilda Graff, "Redesigning Racial Caste in America via Mass Incarceration," The Journal of Psychohistory 43, no. 2 (2015): 125.

30. Marc Mauer and The Sentencing Project, Race to Incarcerate (New York, NY: The New Publisher, 2006), 137.

31. Ibram X. Kendi, Stamped from the Beginning: The Definitive History of Racist Ideas in America (New York: Nation Books, 2016), 435-36.

32. Paul, "One Hundred Years of Race and Crime," 1045-46.

33. Derrick A. Bell, "Brown v. Board of Education and the Interest-Convergence Dilemma," Harvard Law Review 93, no. 3 (1980): 523.

34. Kimberle Williams Crenshaw, "Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law," German Law Journal 12, no. 1 (2019): 250.

35. Crenshaw, "Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law," 271.

36. Chris Barker, "Policing, Incarceration, Race, and Protest after Ferguson," Public Affairs Quarterly 32, no. 4 (2018): 344.

37. Wacquant, "From Slavery to Mass Incarceration: Rethinking the ‘Race Question' in the US," 57.

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