Recent episodes of racist violence in the United States and the protests that followed point to an evident problem. The American judicial system and its penal process are based on the principle of equality, and are free of explicit discrimination on racial grounds. Where is the problem, then? The author examines U.S. institutional practices to allow us to determine to what extent racism is entrenched in the United States, despite its prohibition by law.
Much in the news lately are reports of the deaths of young black Americans at the hands of law enforcement agents in American cities, and the subsequent reaction — ultimately equally violent – of a sector of the black American community, which believes that racism is still rampant in the U.S. The most recent incident is the case of Freddie Gray, who died in Baltimore on April 19 as a result of the treatment he received while under arrest. In contrast to previous cases, in this instance the state’s attorney has reacted diligently. Six police officers have been charged with several crimes, including murder. Is the matter being resolved? Will a trial be sufficient — if the defendants are actually brought to trial — to resolve a case of this nature? That depends on whether or not racism is in fact institutionalized in today’s America.
The African-Americans staging violent protests against cases like these are demonstrating that they have no faith in either judicial solutions or ordinary politicians. They believe that racism in the United States is institutionalized and that those who perish at the hands of a racist police force are not its only victims. In the wake of the abolition of slavery in the 1860s, America faced the challenge of incorporating the entire African-American population into the citizenry, and racism became severely institutionalized. The image America presents today is just the opposite: Since the 1960s, the United States has been dismantling its racist mechanisms of segregation and discrimination by means of federal civil rights legislation, as well as by the evolution of jurisprudence in an equally anti-racist direction. But the perpetrators of the recent violent protests are saying that the image fails to reflect the reality of their lives and that they see no way to bridge that gap by political means.
The facts show that, on the one hand, in principle, no sector of the U.S. citizenry is barred from participating in its political and judicial systems (the latter largely through jury service). And on the other hand, the U.S. has a relatively harsh penal and penitentiary system, which is equally nondiscriminatory in both defense of victims and persecution of delinquents. Let us examine the second of these in more detail.
In reality, the majority of penal cases are settled, not by public trial, but by negotiation, behind closed doors, under the practice known as plea bargaining. The practice lays the way wide open to the use of either leniency in favor of the wealthy or blackmail against marginalized members of society. Even when a case does go to trial, judicial guarantees are more often found in the law books than in the justice system in practice nowadays. Here is where the discrimination occurs, in the fine print, and certainly it looks distinctly racist.
The United States currently holds 2.2 million people behind bars. The entire population of the U.S. accounts for roughly only 5 percent of the population of the world, yet 25 percent of the world’s legally imprisoned population is incarcerated in the United States. In addition, 4.75 million Americans are on strict parole. No other nation in the world even comes close to statistics like these. But the most revealing fact is still to come: 40 percent of the prison population is African-American, despite the fact that African-Americans only account for 13 per cent of the population of the United States. Breaking it down further, more than a tenth of African-Americans from twenty-five to thirty-five years of age are currently behind bars. Figures like these are significant in themselves, not to mention the social and family disintegration they generate in a sector of the population, which maintains a strong sense of community.
It would be wrong to conclude that these are the consequences of the difficulties involved in overcoming a racism that was formerly institutionalized, but has ceased to be so. The fact is that penal figures for the African-American population have significantly deteriorated in the last half-century, since the move toward civil rights. At the same time, the penal system has become harsher as a result of legislation that has restricted the powers of judges and juries in the appraisal of facts, and obliged the law to impose disproportionate sentences for nonviolent crimes, with the effects falling heavily on the African-American population. Under a system that has no penal code in terms of fixed sentencing provision, selective imprisonment can be meted out without apparent discrimination.
But is there no means of political or judicial participation whereby black American citizens can make their aspirations and interests heard? Again, the facts tell the story. In the first place, the penal system, with the discrimination it carries in its wake, exerts a significant effect. The millions in prison and on parole are unable to exercise their rights as citizens, and the same is subsequently true for previous offenders. There are no exact figures for the millions of people excluded from the political system in this way, but it would be reasonable to assume that African-Americans account for a disproportionately high percentage. In the United States, residents are not automatically registered to vote. Instead, they must register themselves, a task that can prove more difficult for an African-American with previous convictions.
After the abolition of slavery, Southern states put abundant mechanisms in place in order to deny access to justice on the part of former slaves and their descendants, who were prevented from registering to vote with similar determination. All of this was achieved without significant constitutional difficulties due to the permissive nature of federal constitutionalism, the latter having internalized the racism of the former slave-owning constitution. At the end of the century, as a result of civil rights legislation and judicial activism at the federal level, these mechanisms began to be dismantled and the federal administration was empowered to control electoral practices in the individual states. In principle, even the regulation of federal elections comes under state rather than federal jurisdiction. The shift in the political scenario caused by African-American citizens gaining access to voter registration and justice across the states was nothing less than spectacular, but we are not looking at a sustained evolution from then to the present day. Retrogression is evident here, too, just as in the penal sphere.
The Federal Supreme Court, currently with a conservative majority, has decided that electoral reform was such a success that it is now time to remove the supervisory and control mechanisms brought in to facilitate African-American voter participation. Powers are therefore being devolved to the states, which are exploiting the opportunity to bring back mechanisms — albeit more subtle this time around — that dissuade voter registration. The African-American population is not the only target. In states with universities that attract students from other states, for instance, new legislation is being implemented whereby citizens must present an identification document (usually the driver’s license — Americans are not issued with an identity document and driver’s licenses are issued at state level) issued in the same state if they wish to vote in that state. This measure makes voter participation difficult for students as well as affecting other less-integrated sectors of society, including considerable numbers of black Americans, among whom it is not unusual to lack the required documentation. It is estimated that more than 10 percent of citizens are not in possession of any form of identity document acceptable for electoral purposes today, and that more than half of that 10 percent are African-Americans.
The current Republican conservative majority in the federal Congress is a majority held by fairly narrow margins in those states that are making use of the relaxation of federal control over the electoral process. And the power held by the most conservative Republican factions in a number of states likewise depends on such manipulations. This is no idle speculation, but the result of comparing the facts, state by state.
Keep all this in mind as you watch protesters clashing violently with police in scenes that might otherwise be difficult to understand. Some people privately hold the view that the African-American media promote a tendency to violent victimization. I would like to see those people inhabit the skin of a black American in today’s America.