The System Isn't Broken, It Was Designed That Way: A Critical Analysis of Historical Racial Disadvantage in the Criminal Justice System

Dr. Chenelle A. Jones | Criminal Justice | Analysis | July 25th, 2013

Contemporary ideologies concerning the structure of the criminal justice system often purports that the system is somehow broken and in dire need of repair from the institutionalized racism that continues to permeate the system. However, to make this assertion of "brokenness" is to also make the assumption that the system was void of any racialized erroneous features at its genesis. This resounding fallacy concerning the structural makeup of the criminal justice system is exasperating because historical trends in justice administration have shown that the criminal justice system is not broken, it was designed that way. The criminal justice system was created in such a way to disadvantage, subdue, and control certain minority groups, namely African Americans. Trends in every facet of criminal justice research concerning police, courts and corrections, provide evidence that the criminal justice system is doing exactly what it was designed to do - marginalize and control minority populations. Although African Americans comprise 13% of the U.S. population, they account for 29% of arrests, 38% of prisoners in state and federal facilities, 42% of death penalty cases, and 37% of executions (Snell, 2011). Research continues to highlight the racial disparities that infiltrate the criminal justice system. While often the recipient of differential treatment, subjective laws, and more punitive sentences, African Americans experience the wrath of the criminal justice system when they are the offenders of crimes. However, when African Americans are victimized by crimes, their victimization is often disregarded and/or addressed with futile effort. Higginbotham (1996) noted these racialized differences in the administration of justice after an extensive review of punishment for crimes committed by both White Americans and African Americans from 1630 to 1865. He found that White Americans tend to ascribe little justice to African Americans while White Americans were indifferent to their own criminality (Higginbotham, 1996). Hawkins (1996) used the phrase "black life is cheap" to describe the devaluation of African American life and their inability to be afforded justice when victimized.

The devalued status of African Americans and their disparate treatment concerning offending and victimization as identified by both Higginbotham and Hawkins, predates the Antebellum period. Even the U.S. Constitution once considered African Americans only 3/5th of a person. So, the notion that the disparities in the criminal justice system are the result of a "broken" system is to overlook and disregard the historical context from which the system was designed. The criminal justice system has been used as a means to perpetuate racial inequalities since its inception. It is a social institution that is vulnerable to numerous external influences and therefore the belief that it is "broken" and somehow in need of repair, is to display a misguided understanding of the macro and micro level contextual factors that affect the criminal justice system and its historical role in race relations. The system is operationally and structurally unsound. There is a need to reconsider the very essence and mechanisms of the criminal justice system. There is a need to reconsider the external influences such as racism, classism, and sexism that influence the system. There is also a need to reconsider the economic and political institutions that control the system. The system is not just "broken" and in need of repair, the system was never right from its establishment.

The criminal justice system is a reflection of society. African Americans have a historical reputation of marginalization and denigration in the United States that reputation is paralleled in the criminal justice system. During the slavery era, African Americans were considered chattel. They were deemed inferior to Whites and forced into slave labor to support the southern economy. Attempts to escape or revolt prompted Whites to use slave patrollers and pass "slave codes" which embraced criminal law and regulated almost every aspect of slave life (Gabbidon and Greene, 2012). These laws were only applicable to African Americans and their violations resulted in harsh punishment because they threatened the very institution of slavery and challenged the status quo. This disparate application of law and the unequal distribution of criminal penalties perpetuated the ideology of White supremacy and Black inferiority. As a result of being birthed from this ideology, the criminal justice system still harbors structural glitches that disadvantage African Americans. Therefore, the assertion that the system is "broken" is an inaccurate assessment, the system was never right from the beginning.

The enforcement of slave codes provides one example of disparate treatment in criminal justice. Laws regulating the slave trade provide another. The slave trade consisted of the abduction, trade, and sell of Africans into slavery, often involving long passages across the Atlantic Ocean. W.E.B. Du Bois found that even after the death penalty was instituted in America for trading slaves, very few Whites were convicted, let alone executed for slave trading (Du Bois 1891). He found that many White Americans believed the punishment of death was too severe a punishment to impose on someone engaging in the slave trade, therefore, White offenders were often found not guilty of the offense. This early form of White crime in America was allowed to persist, particularly due to White supremacy, the devaluation of African American lives, and the economic benefits of the institution of slavery (Du Bois, 1891). Again, historical race relations served as a key component in criminal justice disparities concerning application of the law and imposition of punishments.

Even after 1863 when the Emancipation Proclamation granted freedom to slaves, laws were passed to regulate the lives of African Americans. These laws, commonly known as "Black Codes", penalized African Americans for offenses such as vagrancy and prevented them from testifying against White Americans, serving on juries, and voting. These disparate laws were then enforced by criminal justice practitioners such as the police. Violators were often tried in court by all-White juries, found guilty, and punished by being made to work in the convict-leasing system (Du Bois, 1901). From the beginning, the criminal justice system granted very little justice to African Americans, but if African Americans committed crimes, they endured biased and prejudicial juries who often found them guilty and imposed strict punishments. Conversely, if White Americans committed crimes against African Americans such as rape and/or lynching, rarely were they convicted and made to endure any punitive consequences.

In Southern Horrors: Lynch Law in All Its Phases (1892), Ida B. Wells notes the injustices experienced by African Americans within the criminal justice system. While conducting a broad study of lynchings in America, she found that African Americans were often shot, hanged, or burned to death for minor offenses such as testifying in court, disrespecting Whites, and failing to repay debts. Most of the lynching cases against black men were for rape, even when there was evidence of a consensual relationship. In 1892, Wells found that 66% of the reported 241 lynchings had African American victims. She also found that most White offenders who conducted the lynchings were not convicted of any crime (Wells, 1892). The exclusion of African Americans from testifying in court and the blatant acceptance of White crimes against African Americans without penalty, speaks to the devalued status of African Americans in society and the criminal justice system. It also illuminates the ideology of White supremacy that overtly governed almost every aspect of life then and continues to exist, although covertly now.

The injustices experienced by African Americans within the criminal justice system not only existed in slave codes, black codes, and lynchings, Jim Crow laws further criminalized the mundane behavior of African Americans and subjected them to disparate treatment within the criminal justice system. Jim Crow laws were legal statutes that perpetuated segregation and prevented African Americans from schools, parks, restaurants, theatres, buses, trains, etc. that were designated for White Americans. Violation of these discriminatory laws, which were enforced by law enforcement officials working for their respective criminal justice agencies, carried severe penalties for African Americans. This often led to the increased criminalization of African Americans. Sutherland (1947) noted that African Americans were arrested, convicted, and committed to prisons at a rate of almost three times that of White Americans. Sutherland's findings reveal that even years after its origin, the criminal justice system continued to be used as a means of social control to maintain the social hierarchy of White superiority and black inferiority. This supports the assertion that the system was never broken, it was designed to marginalize African Americans and in doing that, it was very successful.

Building on the idea that the criminal justice system consistently devalues African American life, Johnson (1941) developed a Hierarchy of Homicide Seriousness in which he describes racially disparate perceptions of crime (See Figure 1). Hawkins (1983) further expanded on Johnson's model to include "stranger", "friend", and "acquaintance". Both models highlight the historical devalued status of African Americans in the criminal justice system by noting that crimes are considered "most serious" when there is a White victim and Black offender. These crimes disrupt the established social hierarchy and indicate that African Americans are somehow behaving incongruently with their position in society. As a result, the punishments for these crimes are often very harsh. Crimes in which there is an African American victim and White offender are considered "least serious" because these crimes align with the established social order. African Americans are perceived as inferior to White Americans, therefore their victimization is often overlooked. This model of disparate treatment concerning the victimization of White and African Americans is evidenced in the administration of justice quite frequently.

Figure 1: Johnson's Hierarchy of Homicide Seriousness



Most Serious

Negro versus White, White versus White

Least Serious

Negro versus Negro, White versus Negro

Source: Johnson, G. B. (1941). The Negro and Crime. The American Annals of the American Academy of Political and Social Science. 217:93-104.

The Scottsboro Boys is one case that supports Johnson's (1941) model of racially disparate perceptions of crime. The Scottsboro Boys were several African American boys who rode on a train with a group of White boys and two White girls. While they were on the train a fight erupted. Although the White boys were removed from the train, the two White girls who remained on the train claimed they were raped by the African American boys. As a result of their devalued status in society and the belief of White superiority, the African American boys were presumed guilty before the case even began. This was further evidenced by the lynch mob that formed immediately following the girl's claims. The African American boys were granted a trial, however they were tried by an all-White jury, denied legal counsel, found guilty of the crime and sentenced to death. It was later revealed that the girls lied, however the Scottsboro Boys had already served a combined 104 years in prison by that time (Walker, Spohn, & DeLone, 2004). For Scottsboro boys, the criminal justice system was the very mechanism used to steal the boy's liberties and ensure their punishment for crimes they did not commit by denying them a fair trial and any protection under the law.

The case of Emmitt Till is another example of the criminal justice system devaluing the life of African Americans. While accused of whistling at a White girl, Emmitt Till was kidnapped, beat beyond recognition, and shot in the head. His offenders were tried for murder. The case was decided by an all-White, all-male jury because women and African Americans were not permitted to sit on juries. The jury acquitted the offenders of all charges and a few months later, they confessed to the crime. Like the Scottsboro case, the case of Emmitt Till demonstrates the inability of the criminal justice system to provide justice to African Americans.

The Scottsboro Boys and the case of Emmett Till are just a few of many examples in which the lives of African Americans are devalued by the criminal justice system. During the civil rights era, White law enforcement officials frequently used clubs, tear gas, dogs, and hoses on African Americans without penalty (Gabbidon and Greene, 2012). Thus proving that the very institution that should have provided protection to African Americans, was the primary source of harm to African Americans. So the idea that the criminal justice system is "broken" is incorrect. Since its inception, African Americans were granted very little justice in the criminal justice system. It was designed that way and continues to operate that way.

The cases of Rodney King, Sean Bell, Oscar Grant, and Lorenzo Collins are just a few contemporary examples of the continued perceptions of the devalued life of African Americans in the criminal justice system. Each of these cases involved an African American victim and a police offender. For these cases, the police offender was either acquitted of all charges or convicted of a much lesser charge. Further solidifying the belief that the lives of African Americans are not valued in the criminal justice system.

Most recently, the verdict in the case of Trayvon Martin reaffirmed the devalued status of African American life. The unarmed, 17-year old boy was racially profiled, shot and killed by an overzealous neighborhood watchman named George Zimmerman who claimed self-defense. The offender's acquittal of all charges, by a predominately White jury, speaks to the historical denigration of African American life in both American society and the criminal justice system. It also reveals the implicit institutionalized racism, birthed from the racialized ideologies of the Antebellum period, which continue to manifest itself within the criminal justice system. The posthumous vilification of Trayvon Martin during the trial and the subsequent verdict parallels a historical trend of injustice afforded to African Americans within the criminal justice system. Furthermore, the verdict contradicts the notion that the system is broken, conversely, it affirms the system is operating the way it was designed to function, which is to suppress, subdue, and socially control African Americans. The system is not broken, it was never right in the first place, and until a substantive systematic change occurs, the criminal justice system will continue to be used by privileged Whites as a means to marginalize African Americans.


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