The jena six, mass incarceration, and the remoralization of civil rights

Harvard Civil Rights-Civil Liberties Law Review

Volumn 44, Issue 2, 2009, Pages 477-509

  Kennedy, Joseph E ^a  

^a UNIVERSITY OF NORTH CAROLINA   (United States)

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[No Author keywords available]

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EID: 70049104251     PISSN: 00178039     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (163)

1. Bruce Western, Punishment and Inequality in America 6 (2006).
2. See infra Part II.
3. While the NAACP's initial focus was protecting African Americans from lynching, mob violence, and gross miscarriages of criminal justice, the organization began to shift its focus in the 1930s to economic issues such as education and employment.
4. See, e.g., August Meier & John H. Bracey, Jr., The NAACP as a Reform Movement, 1909-1965:"To Reach the Conscience of America," 59 J. S. Hist. 3, 13-2 17 (1993);
5. See also William N. Eskridge, Jr., Some Effects of Identity-Based Social Movements on Constitutional Law in the Twentieth Century, 100 Mich. L. Rev. 2062, 2065, 2073-2096 (2002) (noting that the NAACP in the 1940s broadened its focus from the "politics of protection"-that of protecting African Americans against exclusively state-sponsored threats to life, liberty, and property-to the "politics of recognition": ending discrimination and exclusion of African Americans in the private as well as public spheres). Even after this shift in focus, however, the NAACP worked to protect the procedural rights of criminal defendants and mounted a major campaign against the death penalty.
6. Eskridge, supra, at 2096, 2287-2299.
7. Monique Morris, Nat'l Ass'n for the Advancement of Colored People, Year One: Toward Safe Communities, Good Schools and a Fair Chance for All Americans, 3, 5-8 (2009) (noting the harmful effects of mass incarceration on people of color and calling for alternatives to incarceration). Since his appointment in May of 2008, the President of the NAACP, Benjamin T. Jealous, has spoken forcefully about the importance of challenging mass incarceration. "'A hundred years from now we're going to be judged by our grandchildren,' he says. 'They're going to look back, and they're going to say, this country had the most incarcerated on Earth. Young black people were the most incarcerated in modem history. What did you do about it?'"
8. Adam Server, The Other Black President: The NAACP Confronts a New Political-and Racial-Era, Am. Prospect, Feb. 23, 2009, at 12.
9. See infra Part III.
10. See infra Part III.A.
11. See infra Parts III.B and IV.A.
12. See infra Part IV.B.
13. See infra Part II.
14. 10 See, e.g., Gabriel J. Chin, The Jena Six and the History of Racially Compromised Justice in Louisiana, 44 Harv. C.R.-C.L. L. Rev. 361, 361-362 (2009).
15. Bruce Western, Mary Pattillo & David Weiman, Introduction to Imprisoning America: The Social Effects of Mass Incarceration 1, 2 (Mary Pattillo, David Weiman & Bruce Western eds., 2004).
16. 12 Id.
17. Id. at 3. "Id.
18. Western, supra note 1, at 3.
19. Id.
20. Western et al., supra note 11, at 6-7.
21. Western, supra note 1, at xii. While more than 90% of prisoners are men, the incarceration of women in these communities-though much smaller in number-may have an impact out of proportion to their numbers because of the role women often play in their communities.
22. See Todd Clear Imprisoning Communities 10 (2007) ("The role women play in their social networks, social capital, and informal social controls, especially in very poor urban neighborhoods, is thought to be more important, per person, than men.").
23. Western, supra note 1, at 157 ("The evidence so far suggests that the prison boom separated many fathers from their children and contributed to low marriage rates and high risks of divorce among poor urban residents.").
24. Id. at 5.
25. Clear, supra note 18, at 6.
26. Western et al., supra note 11, at 10.
27. Jeremy Travis, Invisible Punishment: An Instrument of Exclusion, in Invisible Punishment: The Collateral Consequences of Mass Imprisonment 15, 22 (Marc Mauer & Meda Chesney-Lind eds., 2002) [hereinafter Invisible Punishment].
28. Id.
29. Marc Mauer & Meda Chesney-Lind, Introduction to Invisible Punishment, supra note 24, at 1, 5 (citation omitted).
30. Id. at 6.
31. Devah Pager, Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration 33 (2007).
32. Id.
33. Western, supra note 1, at 7.
34. See generally Pager, supra note 28, at 108-130.
35. Pager, supra note 28, at 4. Pager writes:For each individual processed through the criminal justice system, police records, court documents, and corrections databases detail dates of arrest, charges, conviction, and terms of incarceration. Most states make these records publicly available, often through on-line repositories, accessible to employers, landlords, creditors, and other interested parties. With increasing numbers of occupations, public services, and other social goods becoming off-limits to ex-offenders, these records can be used as the official basis for eligibility determination or exclusion. The state in this way serves as a credentialing institution, providing official and public certification of those among us who have been convicted of wrongdoing. The 'credential' of a criminal record, like educational or professional credentials, constitutes a formal and enduring classification of social status, which can be used to regulate access and opportunity across numerous social, economic, and political domains.
36. Id. at 5.
37. Id. at 69.
38. Id. at 90.
39. Id. at 90-91.
40. Id. at 91.
41. Pager, supra note 28, at 146. Pager explains:Racial stereotypes triggered by the appearance of a young black man . are further intensified by the revelation of his criminal past. Subtle and perhaps unconscious concerns about black applicants are at once confirmed, weakening any incentive to give a young black man the benefit of the doubt. Among young white men, by contrast, the reaction is likely to be quite different. Because whites do not fit the stereotypical profile of a criminal, employers may be more willing to overlook a single prior conviction. A young white man with a criminal background can more convincingly explain that he made a regrettable mistake and has learned his lesson. His prior criminal involvement is then interpreted as an isolated incident rather than an internal disposition.
42. Id. at 101-102 (citation omitted).
43. Id. at 105-107.
44. Jeff Manza & Christopher Uggen, Locked out: Felon Disenfranchisement and American Democracy 8 (2006).
45. Id. at 8-9.
46. Id. at 76.
47. Elizabeth A. Hull, Disenfranchisement of Ex-Felons 9 (2006).
48. Id. (citations omitted).
49. Manza & Uggen, supra note 39, at 80.
50. Id.
51. Id. at 79.
52. Id. at 152. One woman in prison described the comprehensive and profound sense of alienation she expected to experience as a felon upon returning to society: When I leave here it will be very difficult for me in the sense that I'm a felon . it will affect my job, it will affect my education . . custody, it can affect child support, it can affect everywhere-family, friends, housing . People that are convicted of drug crimes can't even get housing anymore . Yes, I did my prison time. How long are you going to punish me as a result of it? . . It's the housing, it's the credit re-establishing . I mean even to go into the school, to work with my child's class-and I'm not a sex offender-but all I need is one parent who says, "Isn't she a felon? I don't want her with my child." Bingo. And you know that there are people out there like that.
53. Id.
54. Western, supra note 1, at 7.
55. Clear, supra note 18, at 5.
56. Id. at 10 (citing Donald Braman, Doing Time on the Outside (2004).
57. Western, supra note 1, at 4-5.
58. Clear, supra note 18, at 9.
59. Western et al., supra note 11, at 5;
60. See also Clear, supra note 18, at 10 ("The high incarceration rates in poor communities destabilize the social relationships in these places and help cause crime rather than prevent it.").
61. Western, supra note 1, at 7.
62. See infra Part III.A.
63. Kevin R. Reitz & Henry Ruth, The Challenge of Crime 73-80 (2003).
64. 37 See, e.g., Michael Tonry, Thinking about Crime 21-62 (2004) (discussing this problem and referencing several other commentators).
65. Thomas Byrne Edsall & Mary D. Edsall, Chain Reaction: The Impact of Race, Rights, and Taxes on American Politics 3 (1991) (describing conservative policies as successfully "pitting those who bear many of the costs of federal intervention against those whose struggle for equality has been advanced by interventionist government policies").
66. J9Loïc Wacquant, From Slavery to Mass Incarceration, 13 New Left Rev. 41, 41-42 (2002).
67. Id. at 42.
68. Id. at 49-51.
69. Id. at 52-53.
70. Id. at 52.
71. Catherine Beckett, Making Crime Pay: Law and Order in Contemporary American Politics 12 (1997).
72. Id. at 6.
73. Id. at 11.
74. Id. at 12.
75. Michael Flamm, Law and Order: Street Crime, Civil Unrest, and the Crisis of Liberalism in the 1960s 4 (2005).
76. Id.
77. Id.
78. Stephanie Coontz, The Way We Never Were: American Families and the Nostalgia Trap 235 (2d ed. 2000).
79. Pager, supra note 28, at 17-18.
80. Joel Best, Random Violence 2-3 (1999) (quoting James Q. Wilson, What to Do About Crime, Commentary, Sept. 1994, at 25, 26). Jerome Miller has pointed out that this is a cyclically recurring theme:With rising concern over urban violence in the 1980s and 1990s came the recycling of the familiar "new breed" theory of young offenders-with the implicit focus on the young black male offender. Politicians and human-service professionals alike periodically call the public's attention to this ostensibly more unfeeling, cold, and dangerous young offender who now stalks our streets.
81. Jerome G. Miller, Search and Destroy: African-American Males in the Criminal Justice System 37-38 (1996).
82. Philip Jenkins, Decade of Nightmares 137 (2006).
83. Best, supra note 73, at 3 (quoting Jerome H. Skolnick, Wild Pitch: "Three Strikes, You're Out" and Other Bad Calls on Crime, Am. Prospect, Spring 1994, at 30, 34-5).
84. Id. at 9-10.
85. 77 See Joseph E. Kennedy, Monstrous Offenders and the Search for Solidarity Through Modern Punishment, 51 Hastings L.J. 829, 830 (2000).
86. See supra notes 71-77 and accompanying text.
87. For a discussion and critique of Order-Maintenance ("Broken Windows") approaches to law enforcement, see generally Bernard E. Harcourt, Illusion of Order: The False Promise of Broken Windows Policing (2001).
88. For a discussion of the role that the War Against Drugs plays in the mass incarceration of African Americans, see Michael Tonry, Malign Neglect: Race, Crime, and Punishment in America 4 (1995). Admittedly, the violence attendant the business of producing and selling illegal drugs is significant.
89. See generally Alex Alvarez & Ronet Bachman, Murder American Style 156-158 (2003).
90. For a description and critique of the punitive turn in the treatment of juveniles in the criminal justice system, see generally Franklin E. Zimring, American Youth Violence (1998).
91. William Julius Wilson, When Work Disappears: The World of the New Urban Poor 11 (1996).
92. Id. at 12-13.
93. Id. at 14.
94. Id.
95. Id. at 16.
96. Id. at 14-15 (quoting Paul A. Jargowsky, Ghetto Poverty Among Blacks in the 1980s, 13 J. Pol'y Analysis & Mgmt 288, 297 (1994)).
97. Id. at xiii. In fifteen black community areas in Chicago that Wilson studied in depth, "only 37 percent of all adults were gainfully employed in a typical week in 1990."
98. Id. at 19.
99. Id. at 53-54.
100. Coontz, supra note 71, at 237.
101. Wilson, supra note 82, at 23 ("Although high-jobless neighborhoods also feature concentrated poverty, high rates of neighborhood poverty are less likely to trigger problems of social organization if the residents are working.").
102. Id. at xiii.
103. Id. at 25.
104. Id. at 26-27.
105. Id. at 26 (defining "prime age" as between the ages of twenty-two and fifty-eight).
106. Coontz, supra note 71, at 245.
107. 97 Id. at 243. Coontz explains:[A]s early as the mid-1950s, the displacement of blacks from southern agriculture began to outstrip the job openings in other areas of the economy, leading to steadily rising unemployment even in periods when employed blacks made relative wage gains. Even during the height of black social and legal progress, unemployment and economic polarization increased, and poverty remained severe.
108. Id.
109. Wilson, supra note 82, at 26.
110. Id. at 54. "Among prime-age nonwhite males, the share of those who had no jobs at all in a given year increased from 3 percent to 17 percent during the last quarter century."
111. Id. at 26.
112. Id. at 52-53.
113. Jennifer L. Hochschild, Facing Up to the American Dream 4 (1995).
114. Id. at 5.
115. Id. at 8.
116. Id. at 159.
117. Id. at 160.
118. Id. at 159-160
119. Hochschild, supra note 101, at 160-61. Hochschild does acknowledge that among what she terms the "estranged poor," the American Dream becomes distorted in ways that can produce serious crime and dysfunctional behavior.
120. See id. at 184-199.
121. Coontz, supra note 71, at 235.
122. Id.
123. Id. at 239 (citations omitted).
124. Id. at 240-241.
125. Id. at 239;
126. see also id. at 241 ("Until the 1960s, 75 percent of black households with a child under the age of eighteen included both a husband and a wife.").
127. 113 Id. at 241 ("From 1900 to 1950, marriage rates were higher for black women than for white ones, and black men were just as likely to marry as were white men.").
128. Coontz, supra note 71, at 238.
129. 115 Id. at 241. Some of these earlier patterns persist: "black men, in spite of 'macho' images and language, are more likely to share housework than are their white counterparts."
130. Id. at 242.
131. Id. at 242.
132. Id. at 247.
133. Id. at 248.
134. Id. Coontz explains:[A] recent study of three different ethnic neighborhoods in Brooklyn, New York, all relatively poor, found few differences in premarital sexual activity and responsibility between blacks and whites. A much higher proportion of white men married their partners on discovery of pregnancy, but most black fathers provided some degree of support for their children. . Indeed, in one national study, poor African-American, officially absent fathers actually had more contact with their children and gave them more informal support than did white, middle-class absent fathers.
135. Id.
136. Coontz, supra note 71, at 250. Mainstream beliefs also create other types of stress for African American men caught in non-mainstream economic conditions:Middle-class blacks who believe in a color-blind meritocracy experience tremendous stress when they encounter setbacks; some studies show that blacks who let themselves off the hook by admitting the obstacles posed by racism are better able to maintain work and educational commitment in the face of reverses than those who believe in the ethic of individual achievement.
137. Id.
138. Id. at 251. Further, Coontz argues:If black family structures had been the same in 1984 as in 1973, the proportion of black children living in poverty would have fallen from 41 percent to 38 percent instead of rising to 43 percent-hardly enough of a difference to win a war on poverty. . The 69 percent increase in the number of blacks living at a level below half the poverty line since 1978 has occurred among both black married-couple and female-headed families.
139. Id. at 252-253.
140. Id. ("If our hypothetical Black family is to enter the middle-class mainstream, which means home ownership, it will need at least $36,595 or four Black men.").
141. John Iceland, Poverty in America: A Handbook 2 (2003).
142. Wilson, supra note 82, at 94.
143. Id. at 163-164.
144. Id. at 166.
145. Iceland, supra note 123, at 2.
146. note Coontz, supra note 71, at 251. Coontz explains:The rising proportion of single-mother families among blacks results from both the declining birth rate of married black women and a drop in marriage and remarriage rates. Both these phenomena should be connected more to the deteriorating economic and social position of lower-income black men, denied job prospects by hyper-segregation and deindustrialization, than to any element of black "culture." Coontz, supra note 71, at 251. Coontz explains:The rising proportion of single-mother families among blacks results from both the declining birth rate of married black women and a drop in marriage and remarriage rates. Both these phenomena should be connected more to the deteriorating economic and social position of lower-income black men, denied job prospects by hyper-segregation and deindustrialization, than to any element of black "culture."
147. Id.
148. W. at 252.
149. 130 See Kathryn Edin & Maria Kefalas, Promises I Can Keep: Why Poor Women Put Motherhood Before Marriage (2005).
150. Id. at 233.
151. Id. at 3-4.
152. 133 Id. No comparable work utilizing interviews with African American men exists. Elijah Anderson devotes one chapter of a wide-ranging ethnography of inner city life to "the mating game." Elijah Anderson, Code of the Street: Decency, Violence and the Moral Life of the Inner City 142-78 (1999). In that chapter, Anderson describes a generally irresponsible and immature approach to sexual activity and relationships by young African American men, although he suggests that these behaviors are shaped in part by the limited economic prospects these young men enjoy. "At times, however, a boy earnestly attempts to be a dream man, with honorable intentions of 'doing right' by the young woman, of marrying her and living happily ever after according to their version of middle-class propriety. But the reality of his poor employment prospects makes it hard for him to follow through.
153. Id. at 153.
154. Edin & Kefalas, supra note 130, at 6.
155. Id. at 9 ("The poor women we talked to . believe it is better to have children outside of marriage than to marry unwisely only to get divorced later. 'I don't believe in divorce- that's why none of the women in my family are married.'").
156. Id. at 7.
157. 137 Id. at 9. As Edin and Kefalas explain:Poor women often say they don't want to marry until they are "set" economically and established in a career. A young mother often fears marriage will mean a loss of control-she believes that saying "I do" will suddenly transform her man into an authoritarian head of the house who insists on making all the decisions, who thinks that he "owns" her. Having her own earnings and assets buys her some "say-so" power and some freedom from a man's attempts to control her behavior.
158. Id.
159. Id. at 6.
160. note Id. at 11. While perhaps not a recipe for childrearing under ideal circumstances, the desire of this group of particularly troubled poor women to improve themselves by taking on the obligations of raising a child expresses a hyper-developed faith in the power of and need for personal responsibility to make life meaningful. Edin and Kefalas write:[W]e paint a portrait of the lives of these young women before pregnancy, a portrait that details the extreme loneliness, the struggle with parents and peers, the wild behavior, the depression and despair, the school failure, the drugs, and the general sense that life has spun completely out of control. Into this void comes a pregnancy and then a baby, bringing the purpose, the validation, the companionship, and the order that young women feel have been so sorely lacking. In some profound sense, these young women believe, a baby has the power to solve everything.
161. Id. at 10.
162. See supra Part III.A.
163. See Jeannine Bell, The Hangman's Noose and the Lynch Mob: Hate Speech and the Jena Six, 44 Harv. C.R.-C.L. L. Rev. 329 (2009).