Racial Justice

Racial (in)Justice – A History of the American Broken System of Justice

In a perfect world, there would be no need for the term “racial justice.”

After all, justice of any kind is justice for everyone, regardless of skin color. Every person on earth should be given the same opportunities to pursue meaning, happiness and purpose, and their needs should be met with the same reverence.

We do not live in a perfect world.

That’s why the Fair Fight Initiative believes in a greater effort to ensure justice to those who have been systemically oppressed in our imperfect world.

Particularly in the United States, the criminal justice system operates as one of the central oppressors. Our system of “equal justice under the law” is essentially two different entities—depending on which side of the racial divide you fall. For some, the system upholds its promise to ensure fair treatment and protection. For others, it reinforces a  cycle of discrimination and oppression which goes back centuries.

Not all this disparity is explicit. In fact, our country’s original sin, the enslavement of people from Africa, was implied in the original foundation of our country’s laws. In other ways, that implicit bias remains in the execution of laws long after the abolition of slavery. From its origin in the Three Fifths Compromise in the Constitution to the ways laws are enforced today, America has failed to provide equal protection under the law to Black people.

In the following article, we will explore the roots of our unjust system, how it was created deliberately to dehumanize people of color—especially Black people—and how it still operates today with the full support of the law.

A History of Injustice

From its inception, the American criminal justice system has been inherently biased. This goes back to the arrival of the first Africans on American shores in 1619, to the first slave ships built less than 20 years later, bringing  Africans and the “need” to create laws relegating Black people as property.

It took 246 years and a civil war to abolish slavery. But even the 13^th Amendment to the U.S. Constitution, which abolished slavery, left open the right for states to punish people convicted of crimes with involuntary servitude. This exception would prove exceedingly prophetic to the system we live in today.

Convict Leasing and Black Code Laws: Slavery Continues

Particularly in Southern states, the stain of slavery persisted. Although there was a brief period of federal activity to facilitate racial justice, the end of Reconstruction in 1877 allowed states to set into motion laws that would perpetuate injustice against Black people. On a societal level, these freed men and women still faced violence and death from the hands of their former captors. On a legal level, many Black people found themselves back in bondage.

That exception to the 13^th Amendment—allowing legal slavery as punishment—manifested itself as a system known as convict leasing. Under this system, (largely Black) prisoners could be “leased” to private plantations, mining operations and railroads as forced labor. While the victims of this unjust system faced the same inhumane and often lethal circumstances forced upon them as slaves, the private companies and states reaped profits and tax revenue.

However, in order to be leased out to these private concerns, a person had to be imprisoned first. In the South, that was accomplished through a series of Black Codes, laws that were explicitly written to apply solely to Black people. These inherently unjust laws subjected Black people to criminal prosecution and imprisonment for minor offenses, which ranged from loitering and being in public after curfew to failing to carry proof of employment.

The most far-reaching of these Black Codes were vagrancy laws. These laws had long been a part of the American justice system going back to the Colonial Era, enacted under the belief that wanderers were inherently criminal. Following the Civil War, these laws were used broadly to detain poor Blacks for any number of reasons, essentially criminalizing skin color.

When Black Americans were arrested for alleged crimes under the umbrella of the Black Codes, they found themselves unable to pay the associated fines, forcing them back into “convict camps” to pay off their debt. In some states, they were required to sign yearly labor contracts. Refusal to sign or inability to pay off debts would put them right back into indentured servitude. The wealthy would benefit, the state would benefit, and slavery was essentially allowed to continue.

From Jim Crow to the War on Drugs

Often referred to as the Jim Crow Era, this stretch of American history saw laws that were unabashedly written specifically to oppress Black Americans. Enforced up until the late 1960s, these laws (both written and unwritten) targeted Black Americans with unjust imprisonment, discrimination, and segregation. Taken as a whole, they represent a monstrously systemic effort to retain white supremacy.

With the birth of the civil rights movement in the 1950s and 1960s, it appeared that the promise of change was just over the horizon. The movement—largely nonviolent—brought light to the South’s brutal, predatory laws, turning public opinion against the South’s history of apartheid. Ultimately, this effort overturned some of the region’s most unjust laws.

The major victories of the Civil Rights Era – the end of Jim Crow, Voting Rights, and a federal discrimination enforcement mechanism – made the injustice of our legal system far less overt, but no less discriminatory. Beginning in the 1970s, the Federal Government began a long-running campaign called the “War on Drugs.” Initiated by disgraced President Richard Nixon, but strengthened and enhanced by nearly every administration that followed, both Republican and Democrat, this nebulous series of policies purported to end the presence of illegal drugs in the country, but only served to create mass incarceration and keep modern day slavery alive in America’s prisons.

Growing legalization efforts and shifting public opinion may have ended the War on Drugs, but the casualties of racially charged mass imprisonment persist.

Modern Slavery: Cash Bail, Policing and Prosecution

Today, the American criminal justice system, which imprisons more of its citizens than any country in the world, enjoys the same legal protection that shielded the institutions of slavery and Jim Crow before it. However, these laws are far more subtle in their unjust application towards people of color.

Start with one of the greatest injustices in America’s criminal system today: the cash bail system. This pervasive structural problem within the criminal justice system demands that even the most destitute citizens pay a monetary fine to secure their release from jail until their court date. Innocent until proven guilty,  freedom for those arrested depends on their ability to make a payment—whether they can afford it or not. Because of this system, nearly half a million people – or roughly 75 percent of everyone in jail at this moment – have not been convicted of a single crime. Their only crime is being too poor to pay for their freedom. Black people—after generations of slavery, land theft, wage theft, and other economic oppression—are more likely to lack the financial resources to post a cash bail.

This is just one tenet of a system seemingly devised to perpetuate racial injustice. A common tactic is for prosecutors to ensnare Black Americans through coercive plea bargaining. This horrifying process allows prosecutors to do everything short of physical torture to compel someone to plead guilty, turning millions of innocent people into convicted criminals without the involvement of judge or jury. With the stroke of a pen, prosecutors can “stack” charges, creating more serious charges than the circumstances merit, holding prisoners to mandatory minimum sentences, detaining citizens through unaffordable bail amounts, and threatening incarceration against witnesses unless they testify for the state.

Finally, the unequal application of police force plays a massive role in perpetuating racial injustice. Today’s police have shown an appetite for violence resembling “slave patrols” that gave birth to policing in early American history. These tools evolved over time into what we now know as modern policing, but which also enforced Black Codes, Jim Crow laws and institutionalized racism. That tradition continues through excessive force, unwarranted violence, and unequal application of the law.

The result of these policies is a system of mass incarceration that has led to a skyrocketing prison population, largely drawn from low-income Black communities.

Inequity in Action: Public Defenders

While it may seem to be a fundamental right we all enjoy as Americans, the concept of a “public defender” is only a century old, when, in 1913, the first public defender agency in the country opened. Prior to that, anyone charged with a crime had two options: they could engage one of the handfuls of “legal aid societies,” which were formed to assist those without the financial ability to hire an attorney but were scarce; Or, they could simply elect to defend themselves, which would put them at the mercy of a justice system that was stacked against them.

Today, as the Miranda warning attests, you have the right to an attorney, and if you cannot afford an attorney, one will be provided for you. Unfortunately, the justice system is still stacked against those who cannot afford a private defense lawyer. Prosecutors and police departments enjoy a wealth of resources and funding, while the average public defender’s office struggles with a shoestring budget. This disparity is a growing national emergency, and one that disproportionately impacts Black people.

Mandatory Minimums and Forced Pleas: The Tools of Oppression

One of the most sinister byproducts of the War on Drugs was the introduction of mandatory minimum sentences for drug convictions, enacted by Congress and state legislatures in the 1980s and 1990s. These laws establish harsh sentences that judges must deliver for specific drugs, regardless of the circumstances of the individual case. In theory, these overly punitive sentences were supposed to act as a deterrent, keeping people from committing the crime in the first place.

In practice, mandatory minimum sentences became a tool for enforcing systemic racism. One example was the disparity between mandatory minimum sentences for crack versus powder cocaine. People convicted of possession of crack cocaine—more prevalent in cities and among poor people—faced sentences that wealthier, suburban people would only face if they possessed a hundred times more of the powder form of the same drug. America’s urban poor, disproportionately Black, were locked up at disproportionately high rates, for draconian lengths of time.

Armed with the threat of these mandatory minimums, prosecutors have used these laws to gain leverage over defendants, particularly those whose cases are being handled by an overwhelmed public defender. Given the choice between potentially facing a lengthy prison sentence after a trial and agreeing to a plea bargain, many will opt to plead guilty, even if they are innocent. The threat alone is enough for them to waive their rights.

By contrast, one only must look at the more recent response to America’s opioid epidemic, which is concentrated in more rural, traditionally white communities. America’s system of justice has leapt to restorative—rather than punitive—action, suing drug makers for their role and increasing funding for treatment.

Injustice in America

The result of this lengthy history—of systemic racism, unequal application of the law, and hopelessness of finding justice while poor and Black in America—is mass incarceration and the more subtle criminalization of simply being a minority.

Today, one in every 100 U.S. citizens is in jail, the largest per capita prison population in the world. That population rose by a staggering 500 percent since 1970, based largely on soaring arrest rates for Black people. In fact, 80 percent of all arrests are for crimes that are essentially the result of poverty and lack of basic human needs like education.

The structures of our justice system were built, at the time, to oppress. Their modern evolutions preserve racist institutions of the past: slavery, Jim Crow laws, and legislation that denigrated and marginalized minority communities. Those institutions may be gone, but their support structures still stand strong, holding up a new form of legalized discrimination. White supremacy persists, written between the lines of our laws and encoded in a system that incarcerates Black people at disproportionately higher rates than white people.

The Fair Fight Initiative was founded to level the field of justice and shed light on this injustice happening in our country. By raising awareness, providing lawyers, and advocating for those in need, we seek to protect and defend those impacted by racial injustice.

With your help, we can help guide this country to a place that lives up to its own lofty goals of liberty and justice for all.

Join the fight today by making your tax-deductible donation online.

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