In a 2011 opinion piece in the Washington Post, Newt Gingrich said, “There is an urgent need to address the astronomical growth in the prison population, with its huge costs in dollars and lost human potential…The criminal justice system is broken, and conservatives must lead the way in fixing it.” An advocacy group called Right on Crime is spearheading Republican efforts to “demand more cost effective approaches that enhance public safety.” Signatories to its statement of principles include, in addition to Gingrich, other notable Republicans like Jeb Bush and Grover Norquist. A recent Washington Monthly article celebrated the right’s new focus on crime claiming it would “put the nation on a path to a more rational and humane correctional system.”

But by focusing on achieving “a cost effective middle ground,” Republican reform strategies end up eschewing the relevance of social justice and largely ignoring racial disparities and the disruptive social costs created by mass incarceration.

Justice and white supremacy

The travesty of mass incarceration and its devastating social effects and of the malfeasance of American jurisprudence cannot be measured purely in terms of economic rationality. It is an issue deeply entwined with long histories of racial oppression and white supremacy. True reform will require grappling with this larger problem.

A 1987 Supreme Court case illustrates what I mean when I say that the justice system is saturated with racism. In McCleskey v. Kemp, the Court declined to define the death penalty as racially discriminatory. The case involved the appeal of the death sentence for Warren McCleskey, a Georgia man convicted of armed robbery and the murder of a white policeman. In his appeal McCleskey cited research analysing 2000 Georgia homicides over an eight year period beginning in 1972 that found black defendants were nearly twice as likely to be sentenced to death as white defendants.

The research, described as the “most sophisticated study of the criminal justice system in the 20th century,” also found that the death sentence was applied 4.3 times more often when the murder victim was white. McCleskey’s appeal (based upon the 14th Amendment guarantee of equal protection and the 8th Amendment prohibition against cruel and unusual punishment), argued that the death sentence was racially biased. Justice Powell, in the majority opinion, accepted the general validity of the data and the likelihood that race was a factor in death penalty cases, but wrote that in the specific case of Warren McCleskey there was no proof of “the existence of purposeful discrimination.”

In the analysis of Bryan Stevenson, Executive Director of the Equal Justice Initiative (EJI), the Supreme Court’s decision in McCleskey upholds the constitutionality of the Georgia death penalty, even while it validates the data showing clear racial bias. Stevenson summed up the case by arguing that in McCleskey v. Kemp the Supreme Court viewed the problem of racial bias as “too big” to confront.

Indeed, in the majority opinion Justice Powell wrote that “if we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty… [S]ince McCleskey's claim relates to the race of his victim, other claims could apply with equally logical force to statistical disparities that correlate with the race or sex of other actors in the criminal justice system, such as defence attorneys or judges.”

In effect, the Court declined to recognise that racism and white supremacy were factors in the administration of justice. “The Court,” Stevenson argued, “said if we recognise disparities based on race in the administration of the death penalty it’s going to be just a matter of time before lawyers begin complaining about race disparities for other kinds of criminal offences…”

McCleskey v. Kemp powerfully reinforced white supremacy in the administration of justice by obscuring a long American history of systematic racial violence and oppression, and normalising racial bias and racial disparities in sentencing. Although the decision was a specific deliberation on racial bias and the death penalty, its logic clearly ramifies throughout the entire criminal justice system.

Race, class and incarceration

The US incarceration rate began increasing in the mid-1970s, but exploded dramatically after passage of the 1986 Anti-Drug Abuse Act. Between 1970 and 2005 the prison population rose 700 per cent. The US comprises only 5per cent of the world’s population, but contains 25per cent of the world’s incarcerated people. Over seven million Americans are entangled with the criminal justice system through parole, probation or other forms of correctional supervision, while 2.3 million are behind bars. At 730 per 100,000 the US prison rate is 4-7 times higher than other western nations and up to 32 times higher than countries with the lowest rates like Nepal, Nigeria and India.

Racial disparities among the incarcerated are glaring: one in every 36 Latino man and one in every 15 black man is a prisoner compared with one in every 106 white man. Four percent of Native American adults are under correctional control. Data comparing apartheid era black incarceration rates in South African with current black male incarceration rates in the US provides a jarring perspective. According to the Prison Policy Institute, in 1993, during the apartheid era in South Africa, black men were incarcerated at a rate of 853 per 100,000 total black male population. In 2010, under the Obama administration, US black men were incarcerated at a rate of 3,074 per 100,000. As the law of the land, McCleskey v. Kemp became an alibi for the racialised logic of mass incarceration, obstructing recognition and elimination of blatant racism in the criminal justice system.

Featured in the December issue of the Smithsonian Magazine, Stevenson was described as “the most important advocate for death row inmates in the US,” having successfully argued cases before the Supreme Court that banned mandatory life sentences without parole for minors. Stevenson is an eloquent, soulful man who sees the world through the eyes of imprisoned children and equates the incarceration of African Americans in the post-Civil Rights era with the enslavement of Africans in the US.

Mass incarceration, he argues, has radically changed society. He speaks of urban communities, like Philadelphia, Los Angeles and Washington, where 50 percent of young black men are in prison, on parole or probation and where the disenfranchisement of convicted felons “has horrific implications for the political aspirations of people of colour.” In Alabama, Stevenson said, 34 per cent of black men have permanently lost the right to vote and within the next 10 years the level of disenfranchisement will be higher than it has been since passage of the Voting Rights Act in 1965.

Stevenson points to the consequences of the 1996 Welfare Reform Law which denied drug offenders eligibility for public housing, food stamps and other benefits, and that has had a disastrous impact on black women and children. Black women comprise half of the female prison population, although they are only 12 percent of the total population. Between 1986 and 1991the number of black women incarcerated for drug offences soared by 828 percent.

It’s not just racism in Stevenson’s analysis that drives the shame of mass incarceration. A class system defined by gross wealth and income inequality and entrenched poverty also subverts the achievement of justice. “We have a system of justice in this country,” he said, “that treats you much better if you’re rich and guilty than if you’re poor and innocent.” A racially biased war on drugs, poverty and political disenfranchisement combine, Stevenson argues, to create “a new class of untouchables, 1 million strong,” who cannot be reached by the public health or welfare systems and are “marginalised in ways from which there is no recovery.”

Using the institution of slavery as a lens through which to analyse the hugely disproportionate incarceration of African Americans men, women and children, Stevenson challenges us to question the logic of a justice system based on the rule of McCleskey v. Kemp. Why are blacks more likely to receive mandatory minimum sentences than whites? Why are two-thirds of those sentenced to life African Americans? Why, according to the US Bureau of Justice Statistics, does a black boy have a 32 per cent chance of going to gaol, compared with a 6 per cent chance for a white boy?

Mass incarceration is a legacy of slavery

Stevenson and the EJI are prompting a discussion on justice, on American racial history, and on slavery and the racism as foundational to the criminal justice system. “America,” Stevenson argued, “… became a society where slavery was a proxy for caste, and value, and worth. So when you ended slavery, you didn't end the presumptions about black inferiority. All those things carried on… Until we have a conversation about that, we are going to continue to replicate those dynamics.” For Stevenson, it is clear that the justice system is based upon both the myth of black inferiority and on the delusion of white supremacy.

In a recent interview Stevenson described white supremacy as a tragedy because “… generations of people … were raised and taught … that they were better than other people because of the colour of their skin… There is nothing more abusive that you can do to a child or to a community than to persuade them that their worldview should be shaped by a lie, and that they should … interpret everything through that lie. And because we haven't talked about that lie, a lot of what we say and what we do reflects an identity that is complicated and compromised by this history.”

It is crucial for us to reflect on Stevenson’s analysis that slavery and mass incarceration are part of a continuum, part of a history of racial oppression and white supremacy that remain entrenched in the legal system. This analysis is especially critical at a time when Republicans are attempting to redefine our carceral state without considering the role of race and racism in criminal justice and American history. This nation’s inability to face a past that includes slavery and the lie of white supremacy severely constricts the possibility of justice in the present and the future.

Follow Wende Marshall on Twitter @WendeEMarshall

Wende Marshall is a cultural anthropologist working on issues of race, healing and social change and is the author of Potent Mana: Lessons in Power and Healing.