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Home » Policing, Policy Riffs

Something smells like a pig, you say?

Submitted by on May 2, 2011 – 12:01 amOne Comment

Has the Obama administration made good on campaign promises for criminal justice reform?

Photo by rajthesnapper via Flickr.

By Nikki Jones

Nikki Jones is an Associate Professor of Sociology at the University of California, Santa Barbara. She is the author of Between Good and Ghetto: African American Girls and Inner-City Violence. Nikki is the social science editor of The Public Intellectual.

The Pig Law started after the end of slavery, just one in a slew of laws enacted by white southerners to replace what the South lost in the War: a steady stream of free labor. Unemployment at the first of the year, for example, became illegal for blacks after the War, punishable by a $50 fine. That kind of law was called a black code because it applied only to black people. The Pig Law was a little different – it took a crime more likely to be committed by black people and made the penalty for that infraction harsher. Stealing a pig started carrying a steeper penalty than other kinds of theft because it was a crime committed disproportionately by African Americans in the decades after the Civil War. That this kind of theft was more than likely a desperate attempt to find food made no difference in determining punishment.

An explosion in the criminal convictions of black people for mostly non-violent offenses followed the new laws. Their punishments were long sentences served on convict labor gangs throughout the South. Black men were ordered to work mines, sawmills, railroad camps and cotton fields. Black women, children and the disabled were sent to lumber companies and plantations. “Slavery by another name,” is how Douglas A. Blackmon describes it. Many black convicts, historian David Oshinsky writes, died under conditions worse than slavery.

Our time is depressingly reminiscent of the post-Reconstruction era, the first time when hope for racial justice rose and then died. Our current tough-on-crime era came hard on the heels of the civil rights movement, much like the Pig Laws came so quickly after Reconstruction. The consequences for black people were predictably awful.

In the years following the adoption of the new drug laws, the number of people incarcerated in federal prisons for drug offenses skyrocketed. Young black men, especially those with little schooling, bore the brunt of the new laws. From 1925 to 1972, the number of state prisoners nearly doubled, from about 85,000 to about 175,000. Since 1972, that number has increased 708 percent. In 2009, just over 2.3 million people were incarcerated in prisons and jails. A black man born between 1965 and 1969, after the major victories of the civil rights movement, is almost twice as likely to be imprisoned than a black man born before the historic 1964 Civil Rights Act was passed by President Lyndon Johnson.

Though as many have pointed out, the civil rights era improved the lives of many black people significantly, I still say that some hope for racial justice died in the 1980s, when the mass incarceration of black people under drug laws started.

When Obama was elected in 2008, we felt a collective surge of hope. Another bright spot in our depressing history of civil rights was long overdue, and his election was certainly a bright spot. But I had bigger expectations of our first black president, more than just the simple fact of his existence. Would our first black president finally dismantle the Pig Laws? That’s what I wanted to see happen when Obama took office.

The Pig Law found its modern incarnation in the form of tough-on-crime legislation in the late 1980s. In 1983, Rudolph Giuliani, who is now Republican royalty, but was then an ambitious New York-based federal prosecutor, outlined the morality of the new drug war in an editorial in the New York Times. “There is a war being fought in [the Lower East Side], a territorial war,” he wrote. “On one side are hard-working, law abiding people. On the other are the invaders who use the streets and abandoned buildings to carry an open market on drugs.” Giuliani explained the underlying logic of arresting “street-level sellers” on federal charges: “If those who are arrested are punished with sentences that frighten those who might be contemplating such crimes we can reduce drug traffic.” Similar arguments were offered from both sides of the aisle in Congress.

The Pig Law found its modern incarnation in the form of tough on crime legislation in the late 1980s.

Suddenly, the full force of the federal government was focused on people they never took notice of before: petty criminals.

Lawmakers’ concerns about open-air drug markets in the city were also fueled by a fear that the urban drug epidemics of the 80’s, especially crack, would spill over to the suburbs. The tougher anti-crack legislation of the 1980s, specifically the 1986 and 1988 Anti-Drug Abuse Acts focused prosecutors’ efforts on low-end urban drug dealers. The Acts also seriously limited judicial discretion in sentencing (a change that has only recently been addressed by the U.S. Supreme Court), and introduced the now infamous 100:1 penalty ratio for cocaine and crack offenses. This federal shift trickled down to state and local jurisdictions. States followed the federal government’s lead, writes legal scholar Doris Marie Provine, resulting in “two decades of racially skewed patterns of arrests, convictions, and sentencing in drug cases, and subsequent disqualification of Black citizens from voting and other benefits of citizenship.’’

A black man born between 1965 and 1969, after the civil rights movement, is almost twice as likely to be incarcerated than a black man born before the 1964 Civil Rights Act.

The federal government’s adoption of modern-day pig laws created what Harvard demographer Bruce Western coined “the mass imprisonment generation.” Today, ten percent of young black men between twenty and twenty-five have been in prison. That’s how the federal government chose to invest our money in poor black neighborhoods. And if you have any doubt that the investment of federal dollars shapes generations, consider how, in the wake of World War II, federal investment helped to create what we remember today as the greatest generation. The mostly white men who went to college and bought homes under the G.I. Bill found entree into the middle class, and their descendants continue to benefit from this investment.

Even as we begin to see small declines in prison populations in some states, and efforts to ease transitions from prison in others, the reality is that it will take generations to undo what was done: our investment in punishment will shape racial disparities for decades.

These facts should be familiar, and pointing them out may even sound cliché. But I outline the problem in order to ask a question: what has our new president done about it on the federal level? And how has Obama’s example influenced policy on the state and local level?

People like to make easy comparisons between then and now: the prison is a plantation, or the ghetto is a prison. But the differences are important.

The punishment of black men, women and children was much more brutal in the post-Civil War South. But today’s system of punishment is much more extensive. Our country’s embrace of colorblind rhetoric—the idea that first the civil rights movement, and then the election of the nation’s first black president, made our race problem all better—has also made challenging these laws on racial grounds even more difficult. Left unaltered, our rules will continue to churn out race-based justice disparities for decades to come.

Dismantling our twenty-first century Pig Laws requires real leadership on the federal level.

Left unaltered, our rules will continue to churn out justice-based racial disparities for decades to come.

Yet few decisions have been made about the criminal justice system by the Obama administration, leaving a vacuum in crime policy that’s been filled by local officials, too often with unfortunate results.

Obama’s crime platform during the campaign was certainly cause for hope for strong leadership. His platform seemed promising, with four key objectives: eliminate mandatory minimums, eliminate the disparity in crack/cocaine sentencing, establish reentry programs, and establish drug courts. Obama’s platform also seemed slightly ironic, given that his running mate, Joe Biden, was in no small part responsible for introducing the crack/cocaine sentencing disparity as a senator in the 1980s. (Biden later apologized for his role and acknowledged that introducing the disparity was a mistake). The lack of evidence for treating cocaine and crack as different drugs under the law was long established by the time of Biden’s 2008 apology. By the time the Fair Sentencing Act, supported by the Obama administration, was introduced in 2010, passage of sentencing reform – which had bi-partisan support – should have been low-hanging fruit.

The Fair Sentencing Act, however, modified rather than eliminated sentencing disparities. The five-year minimum for simple possession of crack got the ax, but getting caught with crack still has harsher consequences than getting caught with cocaine. Before the Fair Sentencing Act, five grams of crack would trigger a mandatory minimum of five years in prison. Now it takes 28 grams of crack to trigger that sentence.

Did the sentencing act make a change? Sure. Did it eliminate a flagrant disparity in sentencing that evoked pig-law era injustices? No.

The amount of cocaine needed to trigger a mandatory minimum remains the same: 500 grams. Sentencing reform reduced the disparity between crack and cocaine from 100:1 to 18:1. Did the act make a change? Sure. Did it eliminate a flagrant disparity in sentencing that evoked Pig-Law era injustices? No. What the Act suggests is that it’s better for our criminal justice system to be somewhat racist rather than very racist. Not exactly the change I was hoping for when Obama was elected.

And that policy change is one of the only positions on crime that the Obama administration has adopted. They are curiously silent on the subject of crime policy. State and local jurisdictions need encouragement to swap out their ineffective tough-on-crime practices for more effective strategies. Instead, states and counties are taking the lead in changing policy and many are moving in the wrong direction. They define getting tougher on crime as good for public safety, without a serious discussion of how such policies might make the incarceration crisis we face even worse. And claims that these policies are good for pubic safety, policies that send non-violent offenders to prison and tag them as felons, and make getting a job almost impossible—those claims are very, very dubious.

City Attorneys in California have turned to civil gang injunctions, for instance, a controversial policing strategy in place almost exclusively in largely African American and Latino neighborhoods in California. The City Attorney in Oakland, an elected official, claims that gang injunctions are good for communities of color because they protect law-abiding black and Latino citizens.

This is another key difference between then and now. Then it was pretty obvious that anti-black sentiment influenced criminal justice policy. Today, local officials, most of whom style themselves as liberal, embrace policies that target African Americans and call them a strike for racial equality.

Injunctions are actually a frightening violation of civil rights, allowing police to restrict the movements of people who have not been convicted of a crime.

Reform is perhaps more difficult today than it was in the post-war South. Then, it was pretty obvious that anti-black sentiment influenced criminal justice policy. Today, local officials embrace policies that target African Americans and call them a strike for racial equality.

Injunctions are restraining orders pursued by city attorneys in civil courts, where they can get away with a lower burden of proof. Factors like tattoos and past convictions are used to classify people as gang members. Sometimes evidence against individual people is evaluated in court by a civil court judge. Sometimes John Does are named on the injunction and police decide on a case-by-case basis who is a gang member and subject to restrictions.

Almost every civil right—including speech and association—is limited under a gang injunction. People named on the injunction can’t associate with each other. They can’t be outside at night in their neighborhood. Any tattoos that they get become further evidence that they are in a gang, which is loosely defined in California as three or more people who have committed a crime at some point and associate with each other. Any violation of the civil injunction, even if the violation is unintentionally walking to the corner store at the same time as another person on the list, is cause for arrest and up to six months of incarceration.

One would think that a President with a background in civil rights law would challenge the adoption of such policies and practices. Instead, the Bureau of Justice Administration, which provides training and technical assistance to local jurisdictions, recently sponsored a web-based seminar that suggested—incorrectly—that gang injunctions are proven to reduce gang-related violence.

Taking a leadership role in setting a new direction for criminal justice policy does not seem like a priority for the Obama administration.

And oddly, Attorney General Eric Holder made an off-the-cuff remark in support of gang injunctions in a visit to Oakland last year, citing it as one of the “ways in which we can be creative” in responding to crime, seemingly unfamiliar with the research on the subject, which offers no support for such an evaluation.

In the absence of thoughtful policy leadership, local crime policies are also shaped by the competition for federal funds. Strapped police departments fight for federal money. Unfortunately, that has the same effect of encouraging the imprisonment of African Americans for money, a practice that the Pig Law also encouraged. That’s largely because of the incentive of Byrne grants. The Byrne grant program was designed in 1988 to encourage jurisdictions to fight the war on drugs, explains legal scholar Michelle Alexander. Without Byrne grants, states would not have the money—or perhaps the desire—to engage in the kind of policing that targets low-level drug dealers and fills prisons with non-violent offenders.

Taking a leadership role in setting a new direction for criminal justice policy does not seem like a priority for the Obama administration. And that’s a profound disappointment.

The question of reform has been considered and re-considered in criminological circles for hundreds of years: the penitentiary, solitary confinement, and the electric chair—all of these were considered reforms. They weren’t good changes, but they demonstrate that the system is dynamic. Significant change is possible, as our record shows, but our direction is often misguided. And while prison reform hasn’t gone especially well over the years, other reforms have, historically, found profound success. Our current President reminds us that the arc of the moral universe bends towards justice. But abolitionists and civil rights activists remind us that the arc doesn’t bend on its own. We must shape it.

The crisis before us is no longer just about crime and punishment. It is not a problem that can be solved by criminal justice experts alone. The criminal justice system reaches out like a hydra scorching whatever comes close to it: schools, housing, families, health. The focus on reform must be equally extensive, and as we develop agendas for change we must remember how deeply race-based justice disparities are woven into the fabric of America. At least that means our problems are familiar and recognizable: If it smells like a Pig Law, it probably is.

Suggested Readings:
Oshinksy, David M. “Worse than Slavery”: Parchman Farm and the Ordeal of Jim Crow Justice. 1997.
Provine, Doris Marie. Unequal Under Law: Race in the War on Drugs. 2007.
Western, Bruce. Punishment and Inequality in America. 2006

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