Sentencing Discrimination against African Americans

Mahdeya Abbassi

Abstract (by way of Editor’s Note): The following study was written by Madeya Abbassi, an Afghani graduate student in Criminology at a mainstream U.S. university. Abbassi was enjoined by her professor to develop a proposal for the research study into her chosen subject. The instructions had it that she must present four different research designs (methods) of addressing the investigation. As the education industry goes in this country today, the Academe produces thousands of studies and proposals for studies. Most of these fall short of actually engaging fundamental social change. For example, there is a plethora of research into climate change, the vast majority of it exposing the cataclysmic threat to the ecosphere and to life on planet Earth. None of this has a minimal effect on U.S. “policy,” and less on the behavior of the planet destroyers, the U.S. monopoly capitalist class. So, too is there overwhelming agreement in research findings regarding the built-in penchant for war as a driving force of the economy of this country. Indeed, the social sciences, political economy taking the lead, have proven that this is a permanent war economy, that this country cannot live economically without killing people every day. These revelations play little to no role in the dismantling of this anti-human economy. This is also the case with studies of the “criminal justice system” of this country. As Abbassi uncovers it, the Academe has attempted to make the public well aware of the manifest absence of justice in the legal system of this country. In this case, however, she has relied on researchers who also engage in social activism to support their research. These educators and writers engage with their research the organized efforts of those millions of people who are subject to the mass incarceration system. This is the conclusion of her study: only a mass people’s justice movement, not academic proposals, can overturn the mass incarceration system.

Introduction/Literature Review Over the past two decades, there has been an enormous amount of attention paid in criminological research to the issue of discriminatory sentencing against African Americans in this country’s criminal justice system (Demuth et al, 2004; Gua, 2016; Redlich, 2010;). Indeed, there has been a tremendous amount of attention paid to this issue in social research in general. Criminologists have acknowledged this overarching attention, in other words, attention beyond their own field. Further, there have been numerous criminological studies which incorporate methods, findings and conclusions from other social sciences, historiography, psychology, the field of humanities and International Law, in their research (Wilson, 2001).

This study will examine the breadth of criminological research into sentencing discrimination, with a focus on the designs of such. In pursuing this subject, the literature review will begin with a historical background of the issue of sentencing African Americans to prison disproportionately to their numbers in the population (Mitchell, 2005), disproportionately to their “criminal” activity (Kutateladze et al, 2016), and disproportionately to the actual societal need to over-sentence and over-imprison this section of the population of the United States, face-to-face with the need for societal safety and protection from criminal activity (Sacks et al, 2012).

The investigation will then come up to today, and will proceed in the Design section to uncover the current logic and patterns which underlie the criminological research into this subject. This section will then turn its focus to proposing a hypothesis, and four ways of testing the hypothesis; four research designs to answer the same question. These designs will not be strictly from discrete criminological techniques and perspectives, but will include elements of meta-analysis crossing lines of sociological disciplines, longitudinal analysis with a focus on historical background, International Law analysis, and Participatory Action Research with a focus on the organized activity of the subjects of the study.

Historical Background Three recently published studies of the history of enslavement and dooming of millions of African Americans to incarceration due to what will be called, throughout this review, “white supremacist sentencing” are so in sync with each other that it is nearly impossible to engage one of them without witnessing reference to the other two: To review Edward Baptist’s The Half has never been Told: Slavery and the Making of American Capitalism (History, Basic Books, 2014), Douglass Blackmon’s Slavery by another name: The Re-Enslavement of Black Americans from the Civil War to World War II (Humanities, Anchor, 2009), and Michelle Alexander’s The New Jim Crow: Mass Incarceration in the era of Colorblindness (Criminology, The New Press, 2012), is to engage an exhaustive look at the history of sentencing and imprisoning the African American population as a defining and foundational element of the criminal justice system of this country — indeed as a defining feature of the social system of the United States as a whole. As this study proposes to utilize meta-analysis, these exhaustive inquiries into the historical background of discriminatory sentencing will be referred to as the base of the methodology:

Baptist: Chattel slavery was an act of war waged by the European settlers and founders of the United States against African peoples. As such, by the standards of International Law, committing the captured Africans to enslavement was a form of sentencing, and the enslaved, by these same current international standards, were prisoners of war (United Nations, 1960, 1965).

Blackmon: This country’s criminal justice system, as such, became what Michelle Alexander and many others today agree is a mass incarceration system when the loophole in the 13th amendment[1] was used to criminalize the entire population of Africans in America, the same African population which got to America through the European invasion of Africa, through war, and kidnapping. Indeed, as Blackmon charts its history, the Jim Crow system was based on the sentencing of African Americans to prison terms on the assumption of their inherent criminality (2009). This is important in the history because, as chattel slavery (Africans in America as prisoners of war) was abolished, it was immediately replaced with a system of imprisonment which was premised on the criminological assumption that Africans in America were, ipso facto, criminals.

Alexander: Again, her study is exhaustive, it is based in criminological research, and it indicts the system itself as being a criminal system, in other words, those who are prosecuting the system are in fact the criminals. It is a system which violates the basic human rights of African Americans. That the sentencing of African Americans to long prison terms for a random, but all-embracing, set of cultural, political and otherwise socially white supremacist excuses (2012), constitutes a system that is criminal, is the foundation of the hypothesis for this proposed present study.

John Braithwaite (Australia National University, 2003) conducts a sweeping expose/research critique of the acclaimed David Garland and his trilogy of books on the sociology of punishment (Garland, 1985, 1990 and 2001). Garland’s study of discrimination in the criminal justice systems of the United States and Great Britain is heralded for its genealogical method (Smandych et al, 1991). In conducting this critique, Braithwaite concedes from the outset that genealogy “is a well-established procedure in ethnography” (2003). “It was initiated by early ethnographers to identify all-important links of kinship determined by marriage and descent. … Marriage, for example, is frequently pivotal in determining military alliances between villages, clans or ethnic groups….” (2003). By accepting this methodology upfront, this criminologist applies Garland’s method to conditions of sentencing and punishment in Australia, while failing to mention that Australia is itself, like the United States, a settler state. By abstracting from the fact that the indigenous peoples of this country are subject to a “criminal justice system” which finds them in identical mass incarceration to that of African Americans, begs the question of a suspect research design. All of this “social scientific” reference to “ethnicity,” “clans,” “kinship,” and “alliances between villages,” are part of a system of white supremacist “othering” of the indigenous population — each of these categories has the indigenous peoples as objects under a microscope for the otherwise human “investigator.”

Kareem Jordan, in his study entitled “Examining the Impact of Race and Ethnicity on the Sentencing of Juveniles in the Adult Court” (Criminal Justice Policy Review, 2009), uses the method of crime mapping (Methods in Criminology Research, 2017) to investigate the role of “race” in the outcomes of sentencing. His findings are: Black Americans are far more likely to be sentenced more harshly for the same crime as are Whites. Blacks are far more likely to be given prison sentences as opposed to jail time. Blacks are far more likely to be given jail over probation than are whites convicted of the same crime. Each of these findings controls for socio-economic reasons why African Americans may be charged with crimes to a far greater extent than are their White counterparts. Again “counterparts” is inside quotes because there are no clear parallels socially, economically and politically between White American males and Black American males, whether juvenile or adult. Each of these categories — economically, socially and politically — taken together is the basis for the discriminatory sentencing from the mass incarceration system.
Research Design The question, “Why are African Americans given prison sentences much more often than White Americans, given much more time on their prison sentences, and given much harsher probation after prison than Whites?,” is a wording of the question which congeals numerous criminological studies which dance around, with various categories such as “race” (which assumes sub-species of the human race), “ethnicity,” “clans,” “minorities,” “non-whites,” and other “othering” language, the basic issue which is: the formerly enslaved population (Africans in America) have never gained the status of being treated as fully human in this social system. The sentencing of Africans in America to mass incarceration is one of the measures of this failure to move beyond the original crime, such which is defining of this country.

The four research designs under examination are longitudinal, meta-analysis, International Law and participatory action research.

Longitudinal This design will bring together the recent research on the history of the issue. As has been laid down in the literature review, the preponderance of evidence has it that the disproportionate, vastly discriminatory sentencing of Africans in America to mass incarceration has its roots in the founding of the country on an economic system of chattel slavery (Baptist, 2014). Indeed, it is the hypothesis of this study that this system of mass incarceration is built in to the basic nature of the social system of the United Sates since its founding. “The idea that the commodification and suffering and forced labor of African Americans is what made the United States powerful and rich is not an idea that people necessarily are happy to hear. Yet it is the truth” (2014). Baptist’s chronology stays focused on the exploitation involved in the mass incarceration of these prisoners of war:

“Enslaved people recognized that the slavery they were experiencing was shaped by the ability of whites to move African Americans’ bodies wherever they wanted. Forced migration created markets that allowed whites to extract profit from human beings. It brought about a kind of isolation that permitted enslavers to use torture to extract new kinds of labor” (2014).

The purport of the longitudinal study is to chart over the course of the history of this country, the persistence of discriminatory sentencing of the African population in America to prison. The proposal here is to do an exhaustive search for both confirming and conflicting evidence; such which will deepen, rather than weaken, the hypothesis here presented. An exhaustive search, enough to be able to draw rich conclusions from the historical sources, is what is being proposed. Blackmon (2009) provides the justification for this exhaustive search when he says, “In every aspect and among almost every demographic, how American society digested and processed the long, dark chapter between the end of the Civil War and the beginning of the civil rights movement has been delusion” (Slavery by Another Name, Anchor).

This longitudinal study would seek data regarding rates of arrest, reasons for arrest, pre-trial determinations, trials, and sentencing, variations over the last 152 years, in other words, since the Emancipation Proclamation banned chattel slavery. Each of these rates would be compared to the same among White Americans. Michelle Alexander (Mass Incarceration System, 2012) provides the following explanation as to why this exposure is necessary in the face of the claim of a “criminal justice system” which is simply responding to crimes committed:

“The genius of the current caste system, and what most distinguishes it from its predecessors, is that it appears voluntary. People choose to commit crimes, and that’s why they are locked up or locked out, we are told. This feature makes the politics of responsibility particularly tempting, as it appears [falling prey to] the [criminal justice] system can be avoided with good behavior. But herein lies the trap. All people make mistakes. All of us are sinners. All of us are criminals. All of us violate the law at some point in our lives. In fact, if the worst thing you have ever done is speed ten miles over the speed limit on the freeway, you have put yourself and others at more risk of harm than someone smoking marijuana in the privacy of his or her living room. Yet there are people in the United States serving life sentences for first-time drug offenses, something virtually unheard of anywhere else in the world” (2012).

These people she is referring to are Africans in America who are overwhelmingly sentenced in this manner compared to their counterpart White Americans. This study will chart the course of this independent variable — the indiscriminant (invariable) discrimination in sentencing.

Meta-Analysis Wilson (2001) explains meta-analysis in this way: “Meta-analysis was designed to synthesize empirical relationships across studies, such as the effects of a specific crime prevention intervention on criminal offending behavior. … The findings from meta-analysis not only reveal robust empirical relationships but also identify existing weaknesses in the knowledge base.” This proposed meta-analysis begins with the assumption (hypothesis) that the issue of discriminatory sentencing is not one of an aberrant element of the criminal justice system, or even an aberrant element of the social system in general. It is rooted in the political economy of the United States since its founding. Mass incarceration, the sentencing of millions of Africans in America to labor as prisoners of war/slaves was at the absolute heart of the success of the economic system — making it possible for the United States to be the most economically dominant nation on Earth today.[2]

Ojmarrh Mitchell, writing for the Journal of Quantitative Criminology (2005) anticipates the research design here proposed when he asks the question: “Are African-Americans treated more harshly than similarly situated whites?” His study employed meta-analysis to synthesize this body of research which was referred to in the Introduction/Literature Review of the present proposal. Mitchell used 116 statistically independent contrasts, and coded them from 71 published and unpublished studies. In explanation of this meta-analysis he said that,

“Coded study and contextual features are used to explain variation in research findings. Analyses indicate that African-Americans generally are sentenced more harshly than whites;… [E]stimates of unwarranted disparity are found in contrasts that examine drug offenses, imprisonment or discretionary decisions, do not pool cases from several smaller jurisdictions, utilize imprecise measures, or omit key variables. Yet, even when consideration is confined to those contrasts employing key controls and precise measures of key variables, unwarranted racial disparities persists” (Mitchell).

The proposal here is to use meta-analysis beyond the range of Mitchell’s study. It is here proposed that a research combination of historiography, political economy, and criminology — meta-analysis — lends itself to the most useful understanding of why the invariability of the discrimination made plain in the longitudinal analysis above persists: it is basic to the functioning of the economy (Daems, 2011). Adding cultural analysis to the mix, and it can be seen that in order to maintain this disparate and oppressive system, a spiritual and mental buy-in must take place in both in the dominant population (Grimes, 2011), and concomitantly in the subject population. Hence, the persistence of endemic racist attitudes among White Americans, and an inverse obeisance to racism, one which produces a “criminal mentality” in the subject population, among Africans in America. This “criminal mentality” has nothing in common with the white supremacist “sub-species”/biological theory of inferiority of Black folk. It is a learned “criminality;” it is a result of social, not biological processes. That the current market economy, the current monopoly capitalist system in the United States is dependent upon a slave population, one that labors by the hundreds of thousands in for-profit prisons — it is this theory of discriminatory sentencing that this meta-analysis seeks to prove. Katie Grimes, in her study entitled “Incarceration, Racism, and the Preservation of White Supremacy” offers the following in defense of the need for this study:

“The lifelong cumulative probability of ‘doing time’…based on the imprisonment rates of the early 90s is 4% for whites, 16% for Latinos, and a staggering 29% for blacks. Given the class-gradient of incarceration, this figure suggests that a majority of [poor] African-Americans…are facing a prison term of one or several years at some point in their adult life…” (Grimes, 2011)

International Law International Law (the United Nations) is the agreements of the vast majority of countries, nations and peoples on the planet. It is made in similar fashion to U.S. law — by precedent; applying these precedents to current events. The mass incarceration system has been placed before this world-representative body, and the process necessitates that the petition filed by the American Civil Liberties Union (2015) be addressed in accordance with codified precedents — previous International Law. The Human Rights Council of the United Nations has now formally adopted the first-ever U.N. report on mass incarceration. In its report, the U.N. high commissioner for human rights has shined global attention on the root causes of over-incarceration in prisons. For protection and maintenance of internal inequality the United States imprisons more of its own citizens in proportion to the overall population than any other country in the history of the world (Currie, 2013). In this regard, there is no doubt that this international body, in accordance with its stipulations for human rights and International Law, which are written for the purpose of protecting these rights, will indict the U.S. for human rights violations because of its maintenance of a mass incarceration system. The United States, with a population one-fifteenth the size of the People’s Republic of China, incarcerates more human beings than the PRC.

This study will investigate the discussions, the deliberations of the UN bodies assigned to address this subject. This study will enter into current International Law to draw its own conclusions — where, when and how does the United States mass incarceration system violate current International Law? It is this question that will be pursued. The hypothesis is that the U.S. mass incarceration system is not an aberration; it is not reform-able. It is part of the nature of U.S. society as a white supremacist society. As such, it will be condemned by the world’s people. International Law is not backed by military force, in general. Its laws and findings of human rights violations cannot be enforced through military means, in general. The U.S. military and local law enforcement, enforce a discriminatory sentencing and incarceration system.

According to the ACLU (2015), a draft resolution was adopted by the Human Rights Council that expressed concern about the “negative impact of over-incarceration and over-crowding on the enjoyment of human rights.”

The ACLU worked with other NGO’s from around the world to bring this issue to the attention of the Human Rights Council. It is proposed here that the present research study partner with the ACLU in its research, and aid it in its effort to obtain the UN’s sanctions against the U.S. mass incarceration system. As noted from the beginning of this proposal, the U.S. discriminatory sentencing system is under acute scrutiny internally. This international effort will expose it to the condemnation of the world’s people. Again, the design is to adjudge this sentencing and resultant incarceration system by the principles of International Law and by the measure not of mere civil rights, but of human rights.

According to the investigation of the ACLU into the UN’s actions on their petition:

“With an incarceration rate five to 10 times that of other Western democracies, the United States has less than five percent of the world’s population, but our country’s prisoners account for one fifth of the global prison population. The U.S. incarcerates more people — in absolute numbers and per capita — than any nation in the world, including the far more populous China, which rates second, and Russia, which rates third” (Turner, 2015).

The ACLU’s petition, for some reason, abstracts from the heart of the matter, as this researcher has framed it, in its references to “people struggling with addiction,” people suffering from mental illness, and the fact that they are not treated for these disorders but are instead imprisoned. The ACLU petition speaks of “People who need community-based supervision, education, and jobs to end the cycle of recidivism…” These groups, they say, “receive longer and longer sentences instead.” They cite “Young people in neglected neighborhoods who are exposed to poverty, violence, and trauma are pushed out of schools and into prisons rather than embraced and healed” (Turner). The present proposal intends to name the issue the way the subject population names it: the mass incarceration system targets African Americans and People of Color. It is a white supremacist system. That the ACLU fails to mention this is typical of White-led critiques. The present proposal stands for those who are the victims of this system to name it themselves: the mass incarceration system commits human rights violations against African Americans and People of Color in the United States. As a sidebar, the ACLU states: “Moreover, the racially disparate patterns of policing and punishment reflect the United States’ ongoing struggle to come to terms with its history of slavery, marginalization, and oppression of people of color” (Turner). This present proposed study is in support of this latter sidebar focus of the ACLU.

Participatory Action Research (PAR) The hypothesis here is that discriminatory sentencing and resultant unjust imprisonment of Africans in America precludes a criminal justice system, and maintains slavery by another name — the mass incarceration system. This hypothesis therefore concludes that resolution of the original sin committed by this country in its founding cannot come through reform of a non-existent criminal justice system. It can only come in the form of a mass people’s justice movement. Just as with the abolition of chattel slavery through the Civil War; just as with the abolition of the Jim Crow system through the Black Liberation Movement (“Civil Rights Movement” of the 1950’s through 1970’s); so too, the mass incarceration system will not be reformed out of existence. Instead, a mass people’s movement to overturn it is what is required. Researchers in criminology who want to be on the right side of history; researchers in criminology who want to make a contribution to human progress regarding this endemic crime against humanity, will participate in action research, in People’s Research (Lynn, 2016), which is the investigative arm of a mass peoples justice movement.

Before going into the detailed description of what this design is, and how this researcher intends to use it to address the hypothesis, it is useful to explain what it is not. Participatory Action Research (PAR) arose in the 1960’s-1970’s social change movement in the United States — Civil Rights, Black Power, Women’s Liberation Movement, anti-Vietnam War movement (Lynn, 2001; McGuire, 1995) — in response to Western sociology’s so-called ethnography. As applied to the question under examination in this proposed study, ethnography is a method of othering of African Americans. Inside Western social sciences, criminology included, ethnography is the quintessential Euro-centric method. The design employed by both Garland in his trilogy on the sociology of punishment, and Braithwaite in his critique of the latter, treat the “subject” population as objects. Ultimately, Braithwaite rightly takes issue with Garland’s use of a genealogical design. Ethnography portends to be treating of cultural and social factors of the “other,” the social group that is not Euro. Genealogy looks for biological, rather than social differences which result in harsher sentences being accrued by African Americans, or in the case of Great Britain, People of Color, or in that of Australia, the aboriginal population. Though Braithwaite’s criticism of the genealogical design is correct, the two — ethnography and biology — come down to the same method. Since biological science has long proven that the differences between various sections of the human race cannot be shown to be significant enough to justify reference to sub-species (Rutherford, 2015), and that therefore, the biological argument is 100% bogus, the ethnographic one remains as the sole representative of a wholly white-centric design. Looking for cultural and social deficiencies in the victims of the mass incarceration system — whether of Great Britain (Garland), the United States (Garland and Braithwaite), or that imposed upon the indigenous population of Australia by the European settler regime (Braithwaite), is a wholly white supremacist project which cannot bare scrutiny.

Participatory Action Research at once turns ethnography on its head: where ethnography purports to give space for the voice of the subjects, ultimately it is the White American or Euro researcher who interprets for “humans” what the “subjects” are saying. For PAR, the voices of the subjects are the last word. They actually get to do the interpreting, the analysis, the translating themselves. However, for PAR this is only one half of the difference. The second half, indeed the more important half, is that the subjects are also actors. They are not expressing opinions and then going back to their prison cells. They are actors in a people‘s movement to bring down the mass incarceration system. Lynn (2016) explains the difference between People’s Research and traditional academic research:

“When studying or researching a social problem for the purpose of resolving this problem, People’s Research involves the broadest possible spectrum of the population under consideration, for this participation is central to gaining the kind of information necessary to effect change. The self-knowledge of the population under consideration is at the center of their ability to effect the changes they seek.”

The proposal here is to use People’s Research to engage the African American population in a mass people’s movement, similar in scope to the Civil War to end chattel slavery, and the Black Liberation Movement (1950’s — 1970’s, also known as the Civil Rights Movement) to bring down, and abolish the Jim Crow system. Action research helps to facilitate this people’s justice movement because the researchers and the actors are one in the same — the subject population — a people’s movement to bring down the mass incarceration system.

Today, there is a mass movement mounting against the white supremacist sentencing. The proposal here is that the method of PAR be used to join this movement, to support it with organized information. This researcher would enter local and national campaigns, interview prisoners’ rights activists, interview Black Lives Matter activists who are at the forefront of the movement to bring down the mass incarceration system. A People’s Research into the discriminatory sentencing would draw its conclusions from the actors. It would take its findings back to the actors. It would seek to publish the voices of those at the center of the effort to vacate this white supremacist sentencing system.

To the extent that this researcher engages other researchers inside the Academe, to that degree is the method of action research to join up others ensconced in academia, and bring them into the real world to effect change in the conditions which are being researched. That is the heart of the method of People’s Research — to directly participate in social change.

Conclusion The proposal to use criminological research to address the issue of the discriminatory sentencing of African Americans responds to two issues, one in the field, the other in society at large: (1) The field of criminology has, as the Introduction\Literature Review attempted to document, acknowledged that discriminatory sentencing against Africans in America is a major societal problem, one which falls in the purview of criminology to address; and, (2) being a major violation of the human rights of Africans in America that has spanned the entire time Africans have lived in America after being kidnapped from Africa, this researcher is moved to be a part of the resolution of this centuries’-old crime against humanity.

The study utilizes a hypothesis which remains consistent throughout the four Research Designs proposed here: From the longitudinal (historical survey); the meta-analysis which endeavors to engage the social sciences and humanities beyond the discrete field of criminology; the reliance on International Law, its precedents regarding slavery, the rights of nations and peoples to self-determination, mass incarceration, and its reference point of human rights as opposed to civil rights; to the requirements of Participatory Action Research to engage the subjects as the agents of their own scientific research findings, this study, in each of these instances involves the subjects of the study — the African American population whose human rights have been violated for centuries — in the findings of the research and, most importantly, in the resolution of this crime against humanity.

Michelle Alexander is at once a criminologist, and a social researcher, and is simultaneously a human rights activist. She framed the social scientific designation “the mass incarceration system,” to replace the fraudulent term, “criminal justice system.” This scientifically accurate term is now popular parlance, mirroring in name the experience of millions of Africans in America, and adopted by the United Nations. One of the first steps towards resolution of a disorder is to correctly, accurately, identify it.

The hypothesis that discriminatory sentencing against African Americans is a defining feature of the white supremacist social system of the United States of America precludes efforts to reform this or that specific ugly feature inside the system, and demands that the white supremacist system itself — which masquerades as a “criminal justice system” — be scrapped by a people’s justice movement.

References

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Gua, Jeff. (2016). “America has locked up so many black people it has warped our sense of reality.” Washington Post. https://www.washingtonpost.com/news/wonk/wp/2016/02/26/america-has-locked-up-so-many-black-people-it-has-warped-our-sense-of-reality/?utm_term=.6cc7c2a4e234

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[1] “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction” (Web Guides, 2017)

[2] “The discovery of gold and silver in America, the extirpation, enslavement and entombment in the mines of the aboriginal population, the beginning of the conquest and looting of the East Indies, the turning of Africa into a warren for the commercial hunting of black-skins, signalized the rosy dawn of the era of capitalist accumulation” (Marx, Capital I, p823).

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