† Criminal InJustice is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy A. Heitzeg, Professor of Sociology and Race/Ethnicity, is the Editor of CI. Kay Whitlock, co-author of Queer (In)Justice, is contributing editor of CI. Criminal Injustice is published every Wednesday at 6 pm.

The War on Black – “Color-blindness” and Criminalization , Part 2
by nancy a heitzeg

Editors Note: As I write this, my Twitter feed is exploding in debate over the NSA/Prism spying program and the attendant leaks. I am seeing the Right decry the same policies they supported — hey voted for — under BushCo because.. well, the President is Black and must be ceaselessly criminalized. I am witnessing liberals defend USA PATRIOT ACT policies that they rejected under Bush because.. well, the President is Black and must be defended for what he  “represents”, at least to some. I am seeing the purity left and libertarians in outrage over governmental intrusion, because… well, White Privilege and now it matters since the target is not just people of color via COINTELPRO or NYPD Stop and Frisk.. But  never mind, let’s co-opt Rosa Parks and MLK..

This is exactly to the heart of my post: Overt racism v. Color-blind racism, an epic battle between two false choices all played out on a personalized level. No structural analysis, nor attendance to systemic racism/classism, and no ability to draw the straight line to consideration of race class gender in the law and its’ enforcement….There is another way..

Last week in Part 1, CI examined a recent report from the Malcolm X Grassroots Movement, Operation Ghetto Storm: 2012 Annual Report on the extrajudicial killing of 313 Black people by police, security guards and vigilantes. The report illustrated, in the extreme, how the criminalizing archetype – as  attached to Black Men in particular-  becomes the excuse for, quite frankly, Genocide.

MXGM makes it plain  that ” the practice of executing Black people without pretense of a trial, jury, or judge is an integral part of the government’s current overall strategy of containing the Black community in a state of perpetual colonial subjugation and exploitation.”

It is a War Against Black People, and certainly, extra-judicial killings represent just one aspect of this criminalizing war:

These killings come on top of other forms of oppression black people face. Mass incarceration of nonwhites is one of them. While African-Americans constitute 13.1% of the nation’s population, they make up nearly 40% of the prison population. Even though African-Americans use or sell drugs about the same rate as whites, they are 2.8 to 5.5 times more likely to be arrested for drugs than whites. Black offenders also receive longer sentences compared to whites. Most offenders are in prison for nonviolent drug offenses

And how does this War persist without national outrage?  With no declared State of Emergency? With so few proposed remedies?

Short answer: White Supremacy.

The devil, of course, is always in the longer details, and so today we turn to a deeper exploration of  “color-blind” racism, the central role of criminalizing archetypes, the complicity of Left, Center and Right, and dare we hope?? – a way out of the color-blind fog..

The Post Civil Rights Era and Color-blind Racism

White supremacy – once writ large in the law via slavery and Jim Crow segregation – was removed from its’ legalized pedestal with the Civil Rights Act of 1964, The Voting Rights Act of 1965 and finally, The Fair Housing Act of 1968. The law became “race-neutral” and it now suddenly was illegal to discriminate on the basis on race.

These strokes of the pen, of course, could not remove the bigotry that lurked in human hearts and minds long steeped in racist archetypes; nor could this legislation remove the nearly 400 years of white racial preference and cumulative advantage in the accumulation of wealth and property, education and housing, health and well-being, and all matter of social opportunities.

Racism, as both white supremacist ideology and institutionalized arrangement, remains merely transformed with its’ systemic foundations intact. Segregation in housing and education persists at levels beyond that noted in Brown v. Board of Education, racial wealth gaps grow, and racial disparities in criminal injustice proliferate at a pace that has led to the label “The New Jim Crow”.

Not only does systemic racism persist indeed with ever widening racial gaps, but the Reverend Dr, Martin Luther King Jr.’s own words have been subverted to construct the denial. “They will not be judged by the color of their skin but by the content of their character,” is not yet reality, but instead now the rallying cry for those who would deny the persistence of racism in any and all of its’ manifestations. These words have been expropriated to legitimate the newest racist paradigm – “color-blindness”.

One of the major challenges of the post-Civil Rights era involves confronting the notion that racism is now over. Many are content to believe that once de jure segregation ended – that once the “colored only” signs were taken down from walls – everything was magically equal on a now level playing field. “Color-blind racism” explains contemporary racial inequality as the outcome of nonracial dynamics and allows whites (others too) to equate racism with prejudice, ignoring the institutionalized and systemic racial structures that sustain and reproduce white racial privilege.

Much racial inequality is now embedded de facto in structural arrangements, it is certainly more invisible. It is easy to identify the overt racist, but much harder to see the racial dynamics that persist in institutional patterns. And, for many whites, it is harder still to see the more subtly coded appeals to racism that they may even unwittingly engage in. This is the goal of the color-blind paradigm – to disguise the persistent racialized patterns of inequality and reduce racism to mere prejudice of the most visible sort.

A large body of research documents the paradigmatic shift from overt essentialist racist to color-blindness. This style of racism relies heavily on ideological frames and linguistic shifts which allow whites to assert they “do not see race”, deny structural racism, claim a level playing field that in fact now victimizes them with “reverse discrimination” and appeals to the “race card”, and argue that any discussion of race/racism is on fact racist and only serves to foment divisions rather than reflect/redress societal realities.  “Color-blind racism” also creates a set of code terms that implicitly indict people of color without ever mentioning race,

Race has never reflected any biological reality; it is indeed a social and political construct, which in the US and elsewhere has served to delineate “whiteness” as the “unraced” norm – the “unmarked marker” – while hierarchically devaluing  “other”  racial/ethnic categories. It is no surprise than that one of the first explicit articulations of color-blind racism was designed to serve political purposes. Race has long been user as divider of those who have common class and political interests, but the Post Civil Rights Era called for new tactics. This is clearly reflected in the so-called Southern strategy of Nixon et al as expressed by Lee Atwood as follows:

You start out in 1954 by saying, “N%$^&#, n%$^&#, n%$^&# .” By 1968 you can’t say “n%$^&#”—that hurts you. Backfires. So you say stuff like forced busing, states’ rights and all that stuff. You’re getting so abstract now [that] you’re talking about cutting taxes, and all these things you’re talking about are totally economic things and a byproduct of them is [that] blacks get hurt worse than whites.

And subconsciously maybe that is part of it. I’m not saying that. But I’m saying that if it is getting that abstract, and that coded, that we are doing away with the racial problem one way or the other. You follow me — because obviously sitting around saying, “We want to cut this,” is much more abstract than even the busing thing, and a hell of a lot more abstract than “N%$^&#, n%$^&#”.

The “success” of this tactic lead to its’ widespread use in debates over welfare reform, affirmative action, and particularly “law and order” criminal justice policy;. In all these cases, the coded racial sub-text reads clearly. And, in all these cases, the resultant policies, while purportedly “race neutral”, resulted in disproportionate harm to people of color.

In the Post Civil Rights Era, the color-blind paradigm has become deeply ensconced in law and politics. Movement towards “race-neutrality” is the  hallmark of a series of Supreme Court decisions that deny the role of institutionalized racism and increasingly limit the role of of race in constitutional remedies for inequality in matters of affirmative action and educational access, voting rights, and all matters of criminal injustice. (See University of California Regents v. Bakke, McCleskey v Kemp, Gratz v Bollinger, and soon Fisher v. University of Texas at Austin and Shelby County v. Holder )

Ironically, the election of the First Black President has served to both re-ignite the overt racist tendencies of the right while simultaneously solidifying the color-blind paradigm, as issues of racial inequality and injustice have been pushed further to the margins of national politics. While race is now widely the text/subtext of  political debate, systemic racism still remains largely absent from either political discourse or policy debates of all sorts, including those related to criminal injustice.

Criminalization, Color-blind Racism, and The New Jim Crow

As Frederick Douglas observed nearly 150 years ago, there is no escaping “the general disposition in this country to impute crime to color”.  Post slavery the criminalizing narrative has been a central cultural feature of on-going efforts at oppression; from convict lease/plantain prison farms to the contemporary prison industrial complex the control of black bodies for profit has been furthered by the criminal justice system.”Slave Codes” become Black Codes and Black Codes become gang legislation, three-strikes and the War on Drugs. The persistent Condemnation of Blackness.

In the Post Civil Rights Era, 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”. “Law and order” criminal justice policies were all guided by thinly coded appeals to white fears of high crime neighborhoods, “crack epidemics”, gang proliferation, juvenile super – predators, urban unrest, school violence, and more. In all these case, the sub-text reads clearly — fear of brown and especially black people.

This color-blind project was project originated with the right, but has widespread influence on the policies and appeals of both major political parties. As Kay Whitlock notes in Criminalizing President Obama:

The “get tough on crime” policy tidal wave was a direct response to the freedom/liberation struggles of the 1960s and 1970s. Barry Goldwater was the first presidential candidate to do so; Richard Nixon elevated it to an art….But the Right is not the only political sector to advance criminalizing narratives. “Our” liberal/progressive/left sector does it too, and so do libertarians, when there is a perceived or anticipated advantage to doing so. According to the Justice Policy Institute, “tough on crime” policies passed during the [President Bill] Clinton Administration’s tenure resulted in the largest increases in federal and state prison inmates of any president in American history.”

Unfortunately, very few politicians from any perspective deeply question the premises and history of “get tough” and mass incarceration; almost none are willing to not only mount a challenge, but support the kind of deep-rooted organizing necessary to sustain challenges. That is because they depend upon mass support. And so far, voters favor “get tough.” No single politician can change that – and without a strong and deep base of community support, anyone who tried would be politically destroyed.

Color-blind racism and tough on crime combine in deadly fashion in the War on Drugs, with its’ attendant spike in mass incarceration, a 40+ year project that now indicts both Republican and Democratic administrations. It is no mistake that the subtitle of Michelle Alexander’s epic indictment of The New Jim Crow is this – Mass Incarceration in the Age of Color-blindness. The Drug War, from start to finish  has always been racist: draconian sentences, crack v powder disparities, police patrol patterns, stop/frisk, and racial profiling, arrests, convictions, sentences, incarceration, and collateral consequences all fall heaviest on Blacks. (Please see Prison Culture’s on-going series: The Drug War: Still Racist and Failed).

Any doubt about any of that is dispelled again this week with a new Report from the ACLU: The War on Marijuana in Black and White. In sum:

• “Over-Policing: Between 2001 and 2010, there were over 8 million pot arrests in the U.S. That’s one bust every 37 seconds and hundreds of thousands ensnared in the criminal justice system.

• Wasted Time and Money: Enforcing marijuana laws costs us about $3.6 billion a year, yet the War on Marijuana has failed to diminish the use or availability of marijuana.

• Staggering Racial Bias: Marijuana use is roughly equal among Blacks and whites, yet Blacks are 3.73 times as likely to be arrested for marijuana possession.”

“Color-blind racism” provides a convenient set of scripts to “explain” away these stunning disparities. Eduardo Bonilla-Silva, the leading and award-winning  scholar on color-blind racism has a large body of work devoted to deciphering these new racial codes. What follows are what he describes as the central ideological frames that support the new racism.

• Abstract Liberalism – appeals politically to “equal opportunity” and economic individualism and “merit” (e.g. In the United States, success is primarily the result of individual merit and hard work; Regardless of race, class, gender or sexual orientation, all have equal opportunities to excel; Racism, classism etc is no “excuse” for failure to succeed.)

• Naturalization – explains social phenomena as natural occurrences (e.g. Racial and economic segregation in neighborhoods and schools is natural and nothing to be concerned about; if there are more people of color in prison, it is because they commit more crimes; If my friends are of the same race as me it is simply because I find more in common with them.)

• Cultural Racism – reliance on cultural explanations for racial inequality (e.g. People of color could have more success if they had a better work ethic; People of color would have more success if they would  try to speak standard English; People of color would have more success if they just got married; Youth of color would come under less police scrutiny if they stopped wearing sagging pants .)

•  Minimization of Racism – argument that discrimination no longer has a major impact on the life chances of people of color (e.g. Racial discrimination is no longer a major problem; People of color need to stop “playing the race card” whenever something goes wrong for them; Racism is the result of prejudiced individuals.)

These ideological frames are used to justify all sorts of racial arrangements, but play a particularly strong role in providing cover for institutionalized racism in the criminal injustice system. We have all heard them; some may have used them. The themes are already closely aligned with the larger tendency in the USA to deny the role of structure and a tradition in academic criminology to search search search endlessly for individual pathologies in explanations for crime.

The denial of systemic racism in criminal justice is unfortunately furthered – not just by whites – but by people of color too. There has always been in a strand in the Black community – as elsewhere – that emphasizes “personal responsibility” as the solution. From Booker T. Washington to Bill Cosby some say – with periodic calls for “The Talented Tenth”. Class matters some here, as do efforts to achieve distance from the criminalizing narratives most readily attached to those both Black and poor.

This has often been the position of the President too, even when directly presented with an opportunity to address the relationship between systemic racism and  “crime”. (To be fair, many assessments of the Obama administration and the Department of Justice policy on issues of criminal justice have been mixed.) Last February, with the backing of a 45,000+ signature petition, The Black Youth Project invited the President to come to Chicago to speak on gun violence:

…we urge the President to make his speech a substantive one that addresses the underlying factors that perpetuate violence in Black and Latino communities.

We hope his speech will detail how he will work with community groups, city and state officials to address the underlying issues leading to gun violence in the Windy City, and other cities across the country.

Namely, the illegal distribution and loose regulation of arms, the lack of living-wage jobs, the varied shortcomings of public schools, the disproportionate rate of incarceration for youth of color, the circumstances and culture that propels the cycle of violence, and yes, the misguided choices young people sometimes make.

The speech??? In the midst of crushing poverty/unemployment for Blacks and Mayor Rahm Emanuel’s dismantling of the Chicago Public School system (the largest mass public school closing in US history), The President called for more parental responsibility and marriage. No mention of the fact that many of those “missing fathers” are swept up in the prison industrial complex, or that 1 in 3 Black men may expect to be imprisoned at some point in their life or that the policy of racialized mass incarceration is the primary contributor to the currently “imperiled Black family” via the large scale imprisonment of men, increasingly women, and juveniles via the school to prison pipeline.

Color-blind rhetoric. At the highest levels.

Now What??

The color-blind paradigm is not progress; it is just a slicker, more insidious version of white supremacy. Arguably, it is even more damaging than overt racism. Certainly it is more difficult to confront; certainly it provides cover for undying institutionalized discrimination: “More African American men are in prison or jail, on probation or parole than were enslaved in 1850, before the Civil War began”. Certainly it is foundational to the contemporary furtherance of racialized criminalizing narratives that fuel the War on Drugs and  the prison industrial complex.

Confronting the pic also requires a challenge to color-blind racism and the myth of “race-neutral policies.

There is no other way.

Some brief and non-exhaustive final thoughts:

• Examine your own biases — unpack your assumptions about “criminals”, “felons”, “public safety”. Who do you see? Who do you fear? Who should you fear??

• Ask hard questions about proposed legislation — Who will benefit from, for example, more police in schools? Who will be harmed?

• Be suspicious of any so-called “criminal justice reforms” that do not directly confront racial disparity ( See Smoke and Mirrors?, Con Artists, Profit and Community Corrections and Confidence Men & “Prison Reform”.)

• Stop thinking you are better than The Hood — embrace the power, the resilience, the creativity, the genius, the potential of The People.

• Support grassroots groups that are already doing the hard work of intersectional analysis/activism ( See Critical Resistance, INCITE! Women of Color Against Violence, Project NIA, Prison Activist Resource Center , Ella Baker Center for Human Rights, Solitary Watch: News from a Nation in Lockdown, and many more.)

• Do not expect any political figures to do this without us pushing — Build a Movement

• Become Traitors to “Whiteness”

• “Say everything or nothing at all.”

• Let Your Motto Be Resistance.

• Imagine Abolition.

 

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