Writing at the turn of the twentieth century, W. E. B. DuBois likened the prison system to “slavery in private hands” (1904: 2). He explained that, with the end of slavery, the numbers of black convicts in the South rose substantially, in large part due to vagrancy laws passed in the aftermath of emancipation. African Americans’ testimonies in courts were largely ignored, and any accusation by whites could result in conviction. Southern states, however, were not able to build prisons fast enough to house these new convicts. Thus a convict-lease system was born – whereby convicts could be leased to the highest bidder to work as slaves. This practice was legal because the Thirteenth Amendment allows for forced labor as a punishment for crime. Notably, in our present system, states still can (and do) force prisoners to work for little or no pay.

Convict leasing was a system of free labor as well as social control. Today, prisons do not function to the same extent as a source of unpaid labor, yet the element of social control persists. One place we can see this is in the lifelong stigma of being labeled a felon. As Michelle Alexander explains, this stigma makes various forms of racial discrimination legal. Felons face discrimination in housing, employment, and access to social services.

This chapter, Racism and the Criminal Justice System, elaborates on this and other ways that mass incarceration has arisen as a tool of social control, and how this crime-control strategy has disproportionately affected people of color. The evidence presented makes it clear that mass incarceration is not only ineffective at preventing crime, but also has been particularly detrimental to communities of color across the United States.

The United States has more people in prison than any other country and incarcerates people at a higher rate than at any other time in history. Our crime rate, however, is not higher than in other countries or than it has been historically. Why, then, are so many Americans behind bars? The answer lies in the United States’ use of mass incarceration as a strategy to reduce crime, particularly to fight illicit drug use. Yet mass incarceration has not been effective at reducing crime and illicit drug use. It has, however, destroyed families and communities and has exacerbated racial inequality in that the primary victims of intensified law enforcement have been people of color.

Mass Incarceration in the United States

An understanding of the racially disparate consequences of the criminal justice system in the United States must first begin with an exploration of the uniqueness of this system. The United States is distinctive among wealthier nations in terms of its liberal use of the prison system. While drugs such as marijuana and cocaine have been decriminalized in Western Europe, the United States has enhanced the punishments for the use of illicit drugs. Repeat-offender laws and mandatory sentencing have meant that, in the United States, many people spend years behind bars for non-violent crimes. Because of the racially disparate implementation and character of these laws, the impact of these laws is visible to a greater degree in communities where blacks and Latinos reside.

The Rise of Mass Incarceration

Mass incarceration is a relatively new phenomenon in the United States and marks a divergence from the attitude of the mid-twentieth century. At that time, Americans tended to view incarceration as an ineffective means of controlling crime and searched for other solutions to reduce crime. Prison was seen as a last resort, and the Federal Bureau of Prisons was planning to close large prisons in Kansas, Washington, and Georgia. In 1970, Congress voted to eliminate nearly all federal mandatory minimum sentences for drug offenders, as most Americans viewed drug addiction as a problem of public health, not criminal justice (Alexander 2010).

Just ten years later, this mindset—that drugs are a public health problem and prisons are barbaric—was pushed to the margins as mass incarceration took off. The U.S. incarceration rate was about 1 per one thousand residents for almost the entire twentieth century, up until the 1970s. The rate doubled between 1972 and 1984, and again between 1984 and 1994. By the end of the twentieth century, the United States had an unprecedented number of inmates—over two million, more than ten times any number of U.S. inmates prior to the 1970s. In 2009, over 7.2 million people were on probation or parole, or in jail or prison —3.1 percent of all U.S. adult residents, or 1 in every 32 adults (Bureau of Justice Statistics). The increase in incarceration cannot be explained by a rise in crime, as crime rates have remained fairly steady (Wacquant 2009). Incarceration rates have soared because the laws have changed, making a wider variety of crimes punishable by incarceration, and lengthening sentences for those incarcerated.