By Mugambi Jouet, author or Exceptional America: What Divides Americans From the World and From Each Other
As America and the world ponder George Floyd’s appalling death, what lies beneath the tip of the iceberg? How do callous killings of black people by police relate to wider systemic racism in American criminal justice? How do they embody dehumanization? And how do they reflect America’s intense polarization?
In my book, Exceptional America: What Divides Americans From the World and From Each Other, I explore the relationship between systemic racism, socioeconomic inequality, populism, skepticism of human rights, and other distinctive features of criminal justice in the United States. In many ways, these peculiar features are a microcosm of American society and its sharp polarization.
The following excerpt of the book describes how systemic racism has contributed to mass incarceration and the retention of the death penalty in the United States. It provides food for thought at a time when America has the highest incarceration rate worldwide, and when it is the only Western democracy that has refused to abolish the death penalty.
America’s shift toward mass incarceration cannot be explained merely by growing conservatism, hysteria over crime, and the weight of anti-intellectualism over policy-making. A justice system has broad functions beyond law enforcement, as it is an extension of society’s overarching values. We will now see that the U.S. penal system embodies key aspects of American exceptionalism: a thorny history of racism, sharp wealth inequality, religious traditionalism, and a peculiar conception of democracy that discounts human rights.
These are all obstacles to genuine and lasting criminal justice reform, which may ultimately depend on more Americans reconsidering how they think about race, class, religion, and democracy.
Minorities are extremely overrepresented in the U.S. penal system. Black people constitute 13 percent of the U.S. population but around 36 percent of state and federal prisoners. Latinos are 17 percent of the population yet 22 percent of prisoners. Discrimination is present at each stage of the legal process. Minorities who commit the same offenses as whites are likelier to be arrested, charged, convicted, and mercilessly sentenced. . . .
Psychological studies show that whites are more inclined to consciously or subconsciously support harsh punishments if they perceive offenders as black. Fear of crime is also greater when offenders are identified as black. And the “blacker” offenders are perceived to be, based on African features, the more they are perceived to deserve the death penalty. Evidence of racism in the administration of capital punishment corroborates psychological research. Modern executions have roots in the tradition of vigilante justice, as a high correlation exists between a state’s number of executions and its past number of lynchings. According to a study by Franklin Zimring, no less than 88 percent of lynchings occurred in the South, the region most likely to execute today. Three in four lynching victims were black.
In McCleskey v. Kemp, a 1987 case, anti–death penalty advocates brought compelling evidence of discrimination in Georgia. An intricate statistical study demonstrated that, all other factors being equal, black people who killed whites were likelier to receive a death sentence. The Supreme Court’s most conservative members were unfazed. During oral arguments, Justice Antonin Scalia derisively asked: “What if you do a statistical study that shows beyond question that people who are naturally shifty-eyed are to a disproportionate extent convicted in criminal cases? Does that make the criminal process unlawful?” John Charles Boger, who represented the black death row prisoner, responded by pointing to the obvious: “This is not some sort of statistical fluke or aberration. We have a century-old pattern in the state of Georgia of animosity [toward black people].” Scalia and four other justices nonetheless chose to analyze discrimination out of its social context, including in cases from Southern states with a long history of slavery, segregation, and lynchings.
McCleskey, a 5–4 decision, held that Georgia’s capital punishment system was fully constitutional. It largely closed the door to statistical evidence as a means of challenging systemic discrimination in sentencing under the Eighth Amendment of the U.S. Constitution. The majority reasoned that a defendant must prove intentional discrimination in his or her own case an almost impossible standard without considering systemic patterns. Its opinion expressed concern about opening the door to other claims of systemic discrimination. In a memorable dissent, Justice William Brennan denounced this “fear of too much justice.”
Some state courts and legislatures have been more receptive to statistical evidence of racial discrimination in sentencing. The Connecticut Supreme Court remarkably acknowledged that the death penalty “inevitably open[s] the door to impermissible racial and ethnic biases.” This was a key factor in its 2015 decision holding that executions violate the Connecticut state constitution. The state legislature had abolished capital punishment in 2012, and the court held that this reform retroactively barred people remaining on death row from being executed. Empirical evidence of racial bias and other endemic problems played a significant role in both the legislative and court proceedings. That being noted, abolition was a vigorous battle in Connecticut, whose death penalty proponents vehemently denied racial bias.
Alongside black people, Latinos face harsh sentences and stigma, regardless of their citizenship, because the immigration debate has been increasingly criminalized. Donald Trump urged the deportation of all Mexican “illegals,” describing them as “criminals” and “rapists.” Rush Limbaugh similarly affirmed that undocumented Mexicans are “a renegade, potential criminal element” that is “unwilling to work.” Both said aloud what many think in private. In fact, the U.S. economy could scarcely function without undocumented people, as the overwhelming majority come to America to work hard and lift their families out of poverty. Research strongly suggests that deporting undocumented immigrants, including those with criminal records, has led to “no meaningful reductions” in the crime rate. That is partly because they appear to have a lower crime rate than native-born Americans. Ironically, acculturation to American society might foster criminal conduct, as second generation citizens are more drawn to criminal activity than first-generation immigrants.
Yet racism is hardly the sole reason for the harshness of American justice, as some argue. Racism in America long predated the shift toward draconian prison terms in recent decades. Besides, it is difficult to claim that Americans are considerably more racist than Europeans, and that this accounts for the exceptional repressiveness of American law. Minorities and immigrants are also highly overrepresented among prisoners in countries like France, Germany, the Netherlands, and the United Kingdom.
What sets America apart in this area, however, is that it has historically been the Western nation with by far the biggest proportion of racial minorities, as discussed earlier. Racism is thus more entrenched in American institutions than in European ones. After all, discrimination in modern Europe has not encompassed subjecting minorities to mass incarceration and the death penalty. Furthermore, America is essentially the lone democracy that strips former convicts of their right to vote. Around 7.7 percent of African Americans cannot vote as a result. In European countries, even current prisoners can generally vote.
*Please note that the footnotes have been omitted