Mass incarceration: A tale of cruelty, racism and closed-mindedness

CONTEXT

To us, the Declaration of Independence is a glorious document and an affirmation of human rights. To the British, on the other hand, it was a statement notorious for its deceit by omission. In the Declaration of Independence, the Bill of Particulars attesting to the reasons for the Revolution cited all the injustices which the colonists felt that England had been guilty of, but listed none of the benefits. .... The Declaration of Independence, as a declaration of war, had to be what it was, a 100 percent statement of the justice of the cause of the colonists and a 100 percent denunciation of the role of the British government as evil and unjust. -- Saul Alinsky, Rules for Radicals: A Pragmatic Primer for Realistic Radicals, 1971

Germaine: Lies of omission: Deceit by intentionally omitting relevant facts, truths, and/or sound reasoning with intent to deceive. Lies of omission can be based on disclosed information that is 100% accurate and reasoning that is sound, but what is intentionally left undisclosed is what gives the lie to what is disclosed. Like lies of commission, lies omission requires intent to deceive on the part of the speaker or information source.

Wikipedia: Lying by omission, also known as a continuing misrepresentation or quote mining, occurs when an important fact is left out in order to foster a misconception. Lying by omission includes the failure to correct pre-existing misconceptions.

As time passes, it becomes clearer to me that (i) my American history education in high school was more propaganda than fact, and (ii) what I have heard about America since high school was also more propaganda than fact. Apparently, mostly because of lies of omission. 

America's cruel mass incarceration experiment

One of the more discouraging bits I encountered in the last few years came last weekend from an NPR broadcast (original broadcast, Aug. 2019) of the program Throughline. Throughline focuses on analysis of American history to look for antecedents in our past to at least partly explain the present. 

This broadcast is a close variant of the history that Throughline focused on regarding the history of American policing a few weeks ago (discussed here). But this is even worse than that one was. The programs is about 49 minutes.

A summary of a few points I adopted from the transcript or the photos:

1. Eastern State Penitentiary (ESP) opened in Philadelphia in 1829 and it remained a functioning prison until 1971. It was part of the movement that laid the foundation for America's penitentiary system and it influenced prison design in other countries.  When it was first built, it was the largest public building in the U.S. The building had indoor plumbing before the White House. Today, it's a museum in the Fairmount neighborhood of Philadelphia. ESP is a central building with five corridors protruding from each side. Prison cells line the walls of each corridor. 

2. The designers of of the prison believed that all human beings regardless of their behavior have good in their hearts. Built on this optimism and faith in human character, they believed that ESP would inspire similar other prisons. The broadcast mentioned no empirical data to base that belief on, probably because there was none. The designers just made it up, most likely because what is what their minds wanted to believe. The prisoners were all kept alone in their cells for long periods of time.

3. ESP was a key part of the foundation for America's penal system. That approach to systematic imprisonment created the conditions for a huge mass incarceration problem that more than a century later. But initially, it was an idea based on arguably good intentions. The founders of the prison were Quakers. They believed the purpose of punishment was penance and rehabilitation would follow. The creators of ESP tried to make a more humane prison by moving prisoners into individual cells, giving them time to reflect, work and read the Bible. Again, no data, just faith, ideology and/or whatever led to that mindset. It turned out to be about as cruel as anything the Nazis came up with during their reign of horror and savagery.

4. Alexis De Tocqueville: Nowhere was this system of imprisonment crowned with the hoped-for success. It never affected the reformation of the prisoners. In order to reform them, they had been submitted to complete isolation. It destroys a criminal without intermission and without pity. It does not reform. It kills. De Tocqueville came to America from France to analyze the new solitary isolation prison design the Americans had come up with at ESP. Failure and cruelty was his assessment of the experiment. His analysis was ignored. A modern expert opined: "Eastern State is, without a doubt, the most influential prison that was ever built." 

5. Later prisons modeled on the flawed ESP ideology spread the idea that people who break laws are criminals who have an affliction and need rehabilitation. Prison was the cure. But we now know the remedy of isolation and contemplation failed.

PART 2: Pivot to the late 1800s and 1900s: The Birth of a Nation (1915) 

6.  The Birth of a Nation was a socially polarizing but very popular movie by the Klu Klux Clan. It significantly helped cement the idea among Whites that Black men were violent, dangerous criminals. President Woodrow Wilson screened the film at the White House and reportedly said, "it's like writing history with lightning. And my only regret is that it is all so terribly true." The fly in that ointment, assuming Wilson actually said it, was that it was so terribly false.

7. That  false belief was used to justify the racist idea that black people were more likely to be in prison than white people. This idea comes up again and again. More black people are in prison, so black people must be more criminal. It seems logical, but this ignores another fact - that black people were ending up in prison because an entire system was created to target them and make them into criminals. 

8. That system was set into motion when slavery ended. What created the social and economic motive for mass incarceration of Blacks was a profound flaw in the 13th Amendment of the Constitution. Specifically, the 13th allowed for slavery as punishment for crime. States in the South simply made a crime of almost everything a Black person could do. There was no way for Blacks to avoid being criminals. Therefore, they must be criminals because the law said so.

9. One modern expert, Doug Blackmon, commented: "That exception to the amendment was an opportunity for white Southerners, in particular, to resurrect new economic and labor systems that relied on the arrest of large numbers of African American men and the return of them to situations that looked extraordinarily like slavery had appeared before the Civil War." The new laws were called the black codes and they were explicitly intended to reimpose white control over all African Americans. Criminal violations included new vagrancy laws, which essentially criminalized unemployment. It became impossible for any African American man anywhere in the South not to be vulnerable to arrest on some spurious or specious or trumped-up allegation. And, all of this happened when the Ku Klux Klan was born in 1866. For context, the Civil War ended April 9, 1865. It didn't take long after the war for Blacks to go back to slavery.

10. The incarcerated Blacks were literally slaves of the state. The Virginia Supreme Court said in 1871 that such slavery was constitutional. By the end of Reconstruction in the late 1870s, this new slavery had begun to set in over black life all over the South.  Southern states passed Jim Crow laws to end black economic and political progress, which served essentially the same function as older the black codes.

11. Under Jim Crow law, it was a crime for a Black person to walk beside a railroad line, sell the produce of their own farm after dark, speak loudly in the company of a white woman and to leave the employment of one person and move to another without permission. All the arrests increased Black prison populations in Southern states dramatically, e.g., from ~1% in Alabama in the 1850s to ~85% in the 1870s.

12. Southern states were in debt for the Civil War and for loans from foreign investors. It turned out that huge returns on their convict-leasing investments affecting thousands of black men in the South solidified the idea that those convicted of crimes could be used as the state saw fit .

13. The black codes and Jim Crow laws began a culture of assigning criminality to African Americans. By the end of the 1890s, many white people viewed the fact that black people were disproportionately imprisoned at higher rates as indisputable evidence of black criminality. What was going on in the South did not matter to the evidence of this prison problem. White people simply could not see that laws had targeted Blacks who could not escape "criminality."

14. There was an economic angle too. Both white Southerners and Northerners began to see large numbers of genuinely independent black men, sometimes compete with white men for jobs and opportunities. That started a popular depiction of African American men as dangerous and America being safe only if they were somehow brought back under tight control of white society. The black criminality stereotype grew from decades of imprisonment in Southern states. By the beginning of the 20th century, black criminality spread from mass culture to the newly formed field of social science. That field falsely found that in fact, black people are different and inferior to white people and that black men are more prone to violence. The science was biased, untenable and is now discredited.

15. This was the most important way Northern Whites convinced themselves that black people were criminals and therefore they themselves were not racist. So if the North was free of racism, the only way you could explain disproportionate crime rates was to say that black people have an innate crime problem.

PART THREE, Pivot to the politics of modern mass incarceration --- the American Prosecutor 

16. From the opening monologue from the TV show Law & Order: "In the criminal justice system, the people are represented by two separate but equal branches groups - the police who investigate crimes, and the prosecutors who try them." The problem is this description is missing two important parts, public defenders and judges. Both are ignored. The people are not represented only by the police and the prosecutors. The people are also represented by public defenders and judges. But that's not how law enforcement is portrayed in mass media or seen most people's minds.

17. Law & Order TV shows just how much emphasis and power we place in the hands of the prosecutor in America. District attorneys can essentially decide if and how to prosecute cases. They recommend prison sentences, and they have the power to offer plea bargains. The prosecutors also have the police on their side. They're the ones who know how an investigation is proceeding and who gather the facts of an investigation. Defense lawyers are lucky if they have any access to investigators at all. Where's the balance and fairness in any of that?

18. One expert on the power of prosecutors opines: "If I asked you who is the most powerful official in America, many people, you know, would first say the president. .... my answer to that person is the most powerful person in America is the prosecutor." For high levels of Black incarceration, the first thing most people blame is the war on drugs, but the fact is that about 15% of all people are in prison for drugs. The homicide rate now is lower than 1970, and starting in 1991, it started a long, slow, steady decline. So while over the 1990s and 2000s, arrests for serious violent and serious property crime dropped by about 25%, but the number of people being sent to prison kept going up and up.

19. The expert points out that there was a huge increase in the number of prosecutors and that lead to more prosecutions and jail sentences. Some of those prosecutors went on to be elected as politicians who campaigned that they were tough on crime. In in the 1940s the Republican Party doubled down on prosecutors for both president and vice president.

20. The two parties converged regarding crime. Robert and Ted Kennedy both reflected convergence of Democrats with the Republican Party in being tough on crime because many voters want a tough-on-crime posture in their politicians, even though crime in America isn't widespread. The great majority of Americans never experience crime, but they only feel it second-hand or third-hand through the news.

21. Prosecutors are usually not defeated in getting elected. Part of the reason is because prosecutors understand that the way to get defeated was to decline to prosecute someone in the past, and then that person went out and committed a rape or murder. Then everyone in hindsight second-guesses that prosecutor and blames them for not having been tough on crime. Hindsight's 20/20. Crime policy won't be the way out of mass incarceration as long as the underlying culture in America criminalizes African Americans and hold prosecutors in a social esteem they do not deserve. One expert opines that maybe there's no way out of mass incarceration without reconciling our history and the truths about our biases and prejudices.

https://en.wikipedia.org/wiki/Incarceration_in_the_United_States

Questions: Are the connections Throughline draws from the 1800s to today persuasive in terms of of the role of racism in modern mass incarceration? Should defense attorneys have the same access to police and the evidence that prosecutors have? Was or is any significant amount of this material taught in High School? Or is this withheld as lies of omission by school boards and/or is it just matter of something else, e.g., educator ignorance?