If you told me just a few months ago that I’d be discussing the criminal justice system and how it’s the anti-Black descendant of slavery that maintains a system of control over populations already oppressed, economically disadvantaged, and mistreated, I would’ve looked at you, super confused, and said something I now consider embarrassing: “Uh, but I don’t know much about it?”
This makes me blush, because although much of the history of how our criminal justice system came to be isn’t taught in school, even a quick Google search reveals so many reasons to be outraged. Like the fact that communities of color in the US are trapped in cycles of poverty and subject to policies that unfairly target them – and then are told that it’s their fault they can’t succeed.
But if you look at my background, it’s easy to see why I – and so many who grew up like me – could be so oblivious for so long.
I grew up in a predominantly white and upper-middle class neighborhood where people often didn’t see police officers except as parents of kids at school. It’s a town where I learned that I could get away with doing things that weren’t strictly following the rules by smiling or charming authority figures like teachers and police officers – even when other kids couldn’t.
I’ve never been arrested or charged with a crime, inside a police station, or visited a jail or prison. I didn’t know anyone who has been “in the system” until recently.
And because I had little actual knowledge, assumptions about how things work could take up space on the brain shelf that ought to be reserved for truth.
The things I “knew” about criminal justice, criminals, and prisons were from fictional TV shows like Law and Order: SVU, Criminal Minds, the first couple of episodes of Orange Is the New Black (here’s a handy article on where it’s an inaccurate representation of women’s prisons), movies, and nightly news programs.
And we know that while some entertainment can be elucidating and progressive, entertainment can also work to maintain the status quo, pander to and sell mainstream narratives, as well as change facts for the sake of the story and entertainment value with no allegiance to truth.
Also, a much greater amount of media focuses on the harm caused by people who break the law, which can desensitize us from caring about the wellbeing of people who are charged with a crime or incarcerated.
This past summer, I came across a news story stating the US Department of Justice ended the use of private prisons for federal inmates. While the headline was celebrated, upon closer review, it was clear this was just a small step in the right direction.
That’s when I started reading about prisons – and I didn’t stop. Every time I thought I’d hit the last time I’d be shocked and outraged, I’d find more egregious violations of basic human decency and logic that made my stomach churn. How does our system still exist the way it does?!
But it’s not just mass incarceration that poses a grave moral violation. It’s every part of the criminal “justice” system that supports mass incarceration – even processes that may seem innocuous, objective, or “colorblind.”
Here are three big reasons why our criminal justice system is harmful to society.
1. It’s Built on a Foundation of Injustice
Our current system of mass policing and mass incarceration takes the same strains of racist thinking that enabled slavery and repurposes them within a system of social control operating under a pretense of racial objectivity.
The end of slavery in the US meant that Southern plantation owners and upper class whites had to adjust to a new dynamic where people who were once considered property now ought to share the same rights and freedoms once denied them.
But codifying the abolition of slavery into law doesn’t deal with the ramifications of losing an inexpensive labor force – nor does it erase racist attitudes about Black people as less than human.
Lawmakers and rich white folks used the fact that many former slaves had nowhere to go to their advantage, implementing Black Codes in many Southern states to curtail the rights of Black people and to restrict their movement, most notably by criminalizing homelessness and unemployment through making “vagrancy” a crime.
Because the Thirteenth Amendment abolished slavery for everyone except those convicted of a crime, free Black persons were arrested and imprisoned en masse under the charge of vagrancy and forced to work as part of their punishment.
Oftentimes, the sheriff could “lease out” convicts, earning money for renting prisoner labor to work under grueling conditions for plantation owners, mines, and other industries, in a rebranded version of slavery.
The modern enforcement of racism through how governments design policy has become less overt with each generation, which makes it more dangerous. Political rhetoric is often coded with ideas and assumptions in order to appeal to the target audience’s implicit biases.
This type of “dog-whistle” politicking has been used to attract white majorities while not sounding racist, in an approach called the Southern Strategy, as explained by campaign consultant Lee Atwater in an infamous 1981 interview:
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, uh, “forced busing,” “states’ rights,” and all that stuff, and you’re getting so abstract. Now, 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.…
These subliminal messages were used to build the “law and order” culture of mass incarceration that so disproportionately affects impoverished Black communities and other low-income communities today:
- President Nixon declared a “war on drugs” to justify arresting Black folks and antiwar protestors.
- President Reagan used this tactic to justify cutting investment into social services by painting a picture of people on welfare as unskilled and lazy exploiters of taxpayer dollars.
- President Bill Clinton called for the criminal justice system to be “tough on crime” while supporting the depiction of Black youth as uncaring criminals, paving the way for over-policing, life sentences, and mandatory minimums for petty crime and increased incarceration rates.
Sadly, these one-dimensional narratives about crime can even convince people of color and poor and working-class folks to internalize inferiority or negative stereotypes when crimes have nothing to do with a person’s racial identity or income level.
Instead, they have a lot to do with historical injustices that sustain class and race inequality, cultural attitudes about what “success” is, toxic masculinity, and failings of public health and education infrastructures.
2. It Doesn’t Address the Root Causes of Crime
The academic discipline of criminology has many theories that, in combination, try to explain the many motivations behind why people commit different types of illegal acts. And what most of them show is that the criminal justice system is ineffective, relative to potential alternatives, in addressing the root causes of crime.
Our model of dealing with crime is more reactive than preventative.
Arresting someone, putting them in prison, or having policies that are “tough on crime” don’t treat the problem of why many crimes are committed in the first place: desperate situations that condition people to act for survival, an indicator of broader reaching maladies in society.
On a bus from New York to DC, I met Juan Reid, a formerly incarcerated person who’s trying to change the transition experience for others returning to society after prison. He’s the founder of a worker’s co-op called TightShift that aims to create employment opportunities and provide re-entry services for formerly incarcerated individuals.
Juan’s been in and out of the system since he was 10. His first offense was arson, setting the local rec center on fire because he was angry that it was a local hangout for those who abused and sold drugs, rather than functioning as a community space for young people.
His parents both had drug addictions that prevented them from being capable of consistently caring for him and his younger siblings. He didn’t live at home for long, but was often placed in social services and group homes instead.
He learned from a young age to take care of everyone around him – trying to stop drug dealers from selling to his mom, honing his salesmanship skills to make money from selling anything he could get his hands on, and later progressing to dealing drugs himself.
When he was 18, he was convicted of attempted murder when he stabbed someone who tried to encroach on his business, and subsequently served 14 years in penitentiaries across the eastern United States.
His story of harrowing life circumstances isn’t uncommon. It’s a story about someone who lost the lottery of birth and grew up in a community where opportunities for upward mobility in society were scarce and where escaping the neighborhood is insurmountable.
Think about how messed up it is that there are places where committing illegal acts are seen as more immediately rewarding choices to make despite the consequences. Out of desperation comes survivalist ways of interacting with the world.
His life experiences have cultivated the belief that society doesn’t care about certain types of people – and that the government cares about some populations’ struggles more than others. We don’t need to excuse his past behavior to acknowledge how his circumstances made it much harder to make “the right choice,” or any choice demonstrating faith in societal systems like law.
As scholar Michelle Alexander so elegantly puts it in The New Jim Crow, a seminal work exposing the hypocrisies of mass incarceration:
[O]ur ability to exercise free will and transcend the most extraordinary obstacles does not make the conditions of our life irrelevant. Most of us struggle and often fail to meet the biggest challenges of our lives. Even the smaller challenges – breaking a bad habit or sticking to a diet – often prove too difficult, even for those of us who are relatively privileged and comfortable in our daily lives.
Beyond addressing what causes crime, we need to question why some things are illegal and considered imprisonable offenses, and how they hold people back from healing and improvement.
For example, jails have become the largest providers of mental health care in the United States because there aren’t enough mental health care facilities to cope with need. Police officers sometimes “mercy book” individuals with mental illness on the streets by charging them with misdemeanors to give them shelter and food, or take them to emergency rooms when what they need is long-term care. On the other hand, those with mental illness or disabilities are often victims of police violence because officers aren’t trained on how to respond.
Homelessness and poverty are also criminalized in more ways than one, from vagrancy to outlawing feeding homeless people to putting mothers in jail for registering their child in a school district they don’t live in.
And knowing why certain types of crime occur isn’t the same as rationalizing that it’s okay that they do occur.
It’s an acknowledgment that purely putting someone through our punitive system doesn’t provide solutions to bigger questions: How do we evolve these communities out of cycles of poverty? How do we increase emotional intelligence? How do we repair trust? How do we combat systemic racism at the municipal level in ways that are reflected in the policies, the neighborhoods, and the schools? How do we combat internalized racism and implicit biases that prime escalatory reactions to people of color and those with mental illness?
These challenges are complex ones, but solving them requires public and political will – and more importantly, the financial investment to support those who want to test proposed ways to mend broken communities.
Keeping people locked up costs the US government $80 billion per year. And more alarmingly, the social cost of mass incarceration is estimated at more than one trillion dollars annually. Imagine the multiplied potential of deliberate investment in the development of healthier communities that aren’t barred from economic and societal opportunity instead of investment in a militarized, and punitive, system of control.
3. It’s Punitive, Instead of Rehabilitative
Juan’s current strides in his fight against past trauma and towards rebuilding his life are because he overcame his time spent in prison, not because of his time in the system.
Prisons (and jails) are not only not rehabilitative, but the opposite. Although the duration of a prison sentence in itself is supposed to be punishment enough – or at least the court’s only role is to determine the punishment in terms of length – these institutions are dehumanizing environments that strain mental endurance and exacerbate or cause mental illness, as well as encouraging antisocial behaviors.
Juan spent fourteen years in a number of prisons – both private and state-run – and seven of those years were spent consecutively in “the hole” (solitary confinement) in a particular federal penitentiary known for excess use-of-force against incarcerated individuals.
Solitary confinement is considered a form of torture by the UN for its lasting effects on mental health, but is still used in the United States, even in juvenile facilities. Since leaving prison, Juan has been diagnosed with PTSD and bipolar disorder, which scares him. He confided that he’s been in situations that trigger the onset of symptoms that make him feel powerless to stop himself from acting out under the feeling that he’s still in prison.
But imprisonment’s dehumanizing effects aren’t restricted to solitary confinement.
Correctional officers work in and contribute to a dangerous environment when they view prisoners as the irredeemable sum total of their crime and treat them as inferior under this pretext. Lack of proper healthcare and respect for the rights of prisoners mean that pregnant people give birth while shackled and that transgender individuals are denied hormone therapy.
Because prisons aren’t concerned with helping prisoners become healthy members of society. When people who’ve been convicted of a crime and imprisoned leave prison, they face huge mental obstacles (in addition to structural ones) that prevent them from succeeding in society.
Formerly incarcerated individuals often return to society with little-to-no emotional preparation, nearly no financial resources, and very little institutional support. After spending years in a very antisocial and controlled environment where every minute of time is structured, formerly incarcerated individuals aren’t prepared to cope with how much life has changed for friends and family members outside of prison, interact with other people in cooperative ways, schedule one’s own time and actions, or use modern technology.
When you add it all together, the odds are stacked against formerly incarcerated people so heavily that I would find the requirements they are asked to perform nearly impossible to meet.
The stigma of being considered a violent offender, an “ex-convict,” a felon, or a criminal puts formerly incarcerated individuals on the margins of society and make it difficult for them to find an employer willing to hire them. These categories and identities become primary and definitive.
States often also prevent them from full participation in society by taking away their right to vote, denying them social services like welfare and housing assistance, and keeping them from obtaining certifications that would increase their value to employers.
On top of this, meeting parole requirements is often infeasible. One-third of people return to prison because of a parole violation – and most of those violations are technical, rather than because they committed a new crime.
And when you consider how disproportionately this criminal justice system affects people of color (one in three Black men can expect to go to prison at some point in their lives) and how many ways people with convictions are barred from mainstream economic opportunities, you start to notice the cumulative consequences of incarceration over time that prevent neighborhoods most affected by incarceration from growing out of their dysfunctions into a community where achievement feels like a possibility.
It doesn’t take much scrutiny to realize that a punishment-focused system will not return healthy people to society, but one has to be willing to challenge or consider long-held beliefs dormant from critical thinking.
Angela Davis writes that in the United States, “it is as if prison were an inevitable fact of life, like birth and death” – but it really shouldn’t be.
It’s true of personal failings that some of them that are more harmful than others. Even if the person who caused harm shows remorse, it doesn’t just negate damage of certain actions. Yet we must remember that punishment cannot undo past harm and offers limited catharsis. Anger isn’t a reason to condone a system that doesn’t attempt growth and restoration, which is the only positive outcome that can arise from mistakes and failure.
That’s not to say you don’t get angry. I feel infuriated every time I hear of someone else who doesn’t get sentenced to more time for rape, sexual assault, or domestic violence – even when other crimes that seem to cause less harm or a different type of harm to people (like property damage) carry longer sentences.
It’s hard to reconcile these feelings with the knowledge that incarceration is a space that doesn’t heal people, because it feels unfair to survivors and victims of these acts when the perpetrator or abuser “gets away” with it. This “getting away” is a feeling that they deserved more punishment.
Let’s face it, as Michelle Alexander writes, “As a society, our decision to heap shame and contempt upon those who struggle and fail in a system designed to keep them locked up and locked out says far more about ourselves than it does about them.”
Even as I write this, the largest prison strike in US history is happening in protest of unfair wages and forced labor – with little-to-no mainstream media coverage.
When an entire system of injustice can operate in the shadows, it can exist with little oversight and little questioning about whether it should exist, whether it serves a prosocial purpose, and whether better alternatives could be implemented.
Our silence becomes a form of acceptance, just like the way men’s silence, despite their personal beliefs about feminism, is acceptance – and tacit endorsement – of rape culture and patriarchy.
As political activist Rabbi Arthur Waskow writes:
[T]he only full alternative is building the kind of society that does not need prisons: A decent redistribution of power and income so as to put out the hidden fire of burning envy that now flames up in crimes of property – both burglary by the poor and embezzlement by the affluent. And a decent sense of community that can support, reintegrate, and truly rehabilitate those who suddenly become filled with fury or despair, and that can face them not as objects – “criminals” – but as people who have committed illegal acts, as have almost all of us.
And this is the same society that feminists are fighting for. The same kind of society that doesn’t condone rape culture is one that encourages healthy gender socialization and sexuality, that doesn’t view people in terms of their productive value to the economy, and that attempts to conduct justice that is intersectional, not co-opted by economic interests of private companies, and equally accountable to all people no matter their group identities.
The society feminists fight for is the kind of society that also does not condone – or need – punitive mass incarceration as a form of social control.
How to Learn More:
Books I started with:
- The New Jim Crow by Michelle Alexander
- Are Prisons Obsolete? by Angela Davis
- Dog Whistle Politics by Ian Haney López
I also watched documentaries like:
- PBS’s Solitary Nation (free, but content note: depression, suicide, self-inflicted injuries)
- Ava DuVernay’s 13th on Netflix
- PBS’s Slavery by Another Name (free, based on a book of same title by Douglas E. Blackmon)
But if you don’t have the resources to buy reading materials, many organizations (and the White House) working for criminal justice reform – including The Marshall Project, ACLU, Vera Institute, Sentencing Project – publish papers freely accessible online.
Jessica Xiao is a Contributing Writer for Everyday Feminism. She is a self-proclaimed nerd and book hoarder who is guilty of tsundoku. Often inaccurately described as Canadian, she thinks of herself more as a Montrealer with US citizenship living in Washington, DC, after having obtained her BA & Sc. in Psychology and the dark art of Economics at McGill University. She is a grant writer for the Montreal-based international women’s economic development nonprofit Artistri Sud and the former assistant editor and writer at The Humanist. She believes in empathic action and bringing our whole selves to every aspect of our lives for transformational social change. She frequently quotes Dorothy Parker and writes bad poetry at stillsolvingforx.tumblr.com. You can also find her on Twitter @jexxicuh or follow her on Facebook.