San Diego Law Review


Brandee McGee

Library of Congress Authority File


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There are currently more Black adults under correctional control than there were enslaved at the height of slavery. Despite Black Americans making up only 12% of the domestic population, states imprison them at more than five times the rate of White Americans. In California, the ratio is even higher: the “Black/‌white disparity [is] larger than 9:1.” Although many White Americans are also imprisoned, Michelle Alexander in The New Jim Crow argues that these White prisoners are “collateral damage” to mask a racialized prison-industrial complex (PIC)—with mass incarceration as the main feature.

In 1865, after decades of activism by the abolitionist movement, the United States ratified the Thirteenth Amendment abolishing slavery “except as a punishment for a crime.” While the PIC is not as overtly brutal as slavery nor as conspicuous as Jim Crow—in part because it is largely concealed from the public, especially with many prisons, even in California, located in remote, rural areas—it is arguably a continuation of both atrocities.

Law enforcement has been used as a tool to control Black Americans long before emancipation. The South mythologized Black violence and organized “slave patrols” to catch runaway enslaved people and to terrorize free Black residents. Today, the mythology of Black lawlessness, which politicians have used to stoke fear and rage among White Americans, has led to an unprecedented rate of Black incarceration.

The Interim Report issued by the California Task Force to Study and Develop Reparation Proposals for African Americans (Task Force) has a section on the criminal system. Unfortunately, the proposed reparations are vague and non-transformative, such as “eliminat[ing] both implicit and explicit bias in the criminal justice system.” These reparations would require more funding for law enforcement, criminal system administrators, and oversight groups, further enriching corporations that already benefit from mass incarceration. While the report notably does request more funding for mental healthcare and community services, it largely ignores the profit and social control motives behind mass incarceration, police militarization, and other conditions that sustain the PIC. The criminal system as we know it cannot be reformed; it must be abolished so that we may create something new—a system of care that renders the current punishment system obsolete. Abolition would eliminate police brutality, felony disenfranchisement, and capital punishment. This, in turn, would increase funding for community support initiatives and, ultimately, the opportunity to achieve racial equity for the very first time in this country.

Part II of this Article demonstrates that mass incarceration is Jim Crow by another name. It addresses the contention that incarcerated Black Americans are not innocent like the enslaved or the victims of Jim Crow. Part III explains how racism gave rise to the PIC, a system that not only incarcerates Black Americans at disproportionate rates but also exploits prison labor to boost billion-dollar industries that rely on such labor. Many formerly incarcerated individuals—again, disproportionately Black— are stripped of their freedom to vote, receive public benefits, and pursue economic security in the job market—a deprivation of resources that leads to our high rates of recidivism compared to the rest of the world. Black recidivism is predictably higher than White recidivism in the United States. Many conservatives point to internal factors as the cause of racial disparities like these. However, this claim is undercut by the fact that “post-release employment and level of education were the two most influential predictors to recidivism among ex-prisoners, regardless of race.”

A major principle of reparative discourse is that the atrocity must end before reparations, or any other form of redress, are paid. Part IV explores ending the PIC atrocity through abolition. Part IV details what abolition might look like, keeping in mind that there is no single unified vision of abolition. There is no tension between fighting for abolition and not knowing what exactly the result will look like, for each local community has different needs and priorities. As abolitionist icon Angela Davis often emphasizes, abolition requires a complete reframing of our social organization —instead of relying on law enforcement and punitive systems, prioritizing community resources and care. Abolition must end prior to or at the same time reparations are issued. Part V discusses why. Lastly, Part VI illustrates the kinds of reparations that could ultimately lead to racial equity.

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