One measure of equality suggested by the British sociologist T.H. Marshall is “citizenship” - the “basic human equality associated with  . . . full membership of a community.”  African American history, from bondage through the civil rights movement, is often seen through the political lens as a struggle for citizenship and full membership in American society.  A new chapter in this struggle has now emerged.  How has the quest for equality and citizenship fared in this new era of mass incarceration? Criminal justice policies developed in the U.S. over the past three decades resulted in mass arrest and incarceration that has fallen disproportionately on communities of color, and the increase of collateral consequences- which disqualify people from jobs, housing and social services because of a criminal records – make it very difficult for people with criminal records, who are most often indigent and persons of color, to become full and productive members of society.  Policy makers must evaluate the racially disparate impact of these laws, and begin to develop new policies to counter the devastating effects of these policies on communities of color.

A Historical Perspective

Law, in its many forms - Declaration of Independence, Constitution, Supreme Court decisions, state law, and criminal codes - has played a critical role in defining the basic human principles of citizenship and equal opportunity in American.  Unfortunately, for African-Americans and other people of color, the law has been at the undergirding of inequality in America.

The first chapter of this history began with the oppressive colonial slave codes of the early eighteenth century and continued up to the American Revolution.  The revolution of our founding fathers presented an opportunity to fully embrace equality.  Instead, enshrined in the Constitution itself we find the continuation of the slave trade, the guaranteed return of fugitive slaves, and the counting of non-“free Persons” as three-fifths human beings for purposes of taxation and representation.  The Supreme Court’s decision in Dred Scott v. Sanford, 60 U.S.393 (1857) reaffirmed the prevailing opinion of the Framers of the Constitution that Dred Scott, and by extension, any other African American person, could not be a citizen under the Constitution.  Chief Justice Taney, writing for the majority, relied upon the historical view of the black race as “an inferior order . . . so inferior that they had no rights which the white man was bound to respect.”

The Civil War, with the potential to change this racial legal dynamic, fell short of this goal.  Even after the Emancipation Proclamation and the civil rights amendments, racism and economic exploitation that were the foundation for slavery, remained intact.  The advent of the Black Codes, the convict lease system, and sharecropping shattered the dream of freedom and equality for African-Americans in the nineteenth and twentieth century.

From 1876 through 1965 the shadow of Jim Crow spread across America.  Replacing the social control of slavery, states began to systematically codify the separation of the races.  Government enacted sanctions combined with attitudes and actions that permitted acts of discrimination against African Americans.  Despite the Emancipation Proclamation and the passage of the civil rights amendments, a second notorious Supreme Court decision put the stamp of approval upon America’s brand of apartheid, legitimizing racism and inequality with a turn of a phrase - “separate but equal.”  Plessy v. Ferguson, 163 U.S. 537 (1896).  The law of the land ensured inequality. By a series of legal maneuvers - and the extralegal practice of lynching - African American people were disenfranchised and stripped of any semblance of citizenship.  The poll tax, the literacy test, and the Grandfather Clause were all legal devices employed to prevent access to political power and maintain inequality.  Through the middle of the twentieth century African American remained segregated, barred from full and free participation in American life and rendered politically powerless.

This wall of separation was shaken by the civil rights movement and a shift in the law embodied in the landmark case of Brown v. Board of Education, 347 U.S. 483 (1954).  By the mid-1960s, the civil rights campaign had successfully abolished segregation in education, discrimination in public accommodations and employment, and eliminated many of the impediments to enfranchisement.  It appeared Jim Crow was on the run.  For those who celebrated the elimination of the barriers to full participation in American society for African Americans, their optimism was short-lived.  As Justice Thurgood Marshall warned in his speech at Howard Law School in 1978, we cannot become complacent about the strides toward equality made by the civil rights movement.  “Be aware of that myth, that everything is going to be all right . . . Take if from me, it has not been solved . . . They are still laying traps for us.”

Present Day Disparate Impact

While overtly racist segregation policies are no longer the accepted norms, criminal justice policies that disproportionately impacted African-Americans began to label a large number of African-Americans and other people of color as second-class citizens based on criminal records.  Some policymakers used crime as a tool to advance a racial agenda without violating the newly created civil rights norms, and a justification for creating harsh and draconian laws that resulted in mass incarceration and racial disparities within the criminal justice system.  The harsh criminal justice laws were combined with civil disabilities, which disqualified people from housing, jobs, and social services based on a criminal record alone.  The “War on Crime” focused on crime as the problem as opposed to urban blight, poverty, and racial discrimination and replaced the emphasis on addressing the underlying causes of crime through a “War on Poverty.” These laws diminished the gains accomplished during the civil rights movement by regulating many poor African-Americans with criminal records to second-class citizenship.

Criminal justice policies developed in the U.S. over the past three decades have created a phenomenon of mass arrest and incarceration that has fallen disproportionately on communities of color.  In 2007 there were more than 2.3 million people confined in U.S. jails and prisons, the majority of whom were black and brown.  If current trends continue, one in three African American men born today will be incarcerated during their lifetime.  In this era of mass incarceration African Americans are seven times more likely to be incarcerated than whites.  For this disproportionately African American prison population the punishment neither starts nor ends at the prison gate.  The collateral consequences of a conviction - laws and regulations that bar people from jobs, education, voting - continue long after the sentence has been served.  The architects of Jim Crow constructed barriers to enfranchisement, employment, education and equality in order to suppress the struggle for full citizenship for African Americans in America.  In this post-civil rights era of mass incarceration, African Americans find that these same barriers have again been erected, blocking the path to full citizenship, imposed not in the name of racial superiority, but in the name of “race-neutral” collateral consequences of a criminal conviction that, not unlike so many black codes, are applied disproportionately to people of color.  The effort to deny full citizenship has reemerged.  These policies are the catalysts for a new age of segregation and the roadblock to participation in civic life.  It is a new inequality with deep historical roots.  As Harvard sociologist, Bruce Western has observed, “[the] penal system has emerged as a novel institution in a uniquely American system of social inequality.”  The “race neutral” laws of the criminal justice system have become the engine that drives inequality in American today.

Justice Thurgood Marshall must be looking down on America, shaking his head in dismay.   He sees an America where a criminal conviction has become the surrogate for race discrimination.  He sees an America that has, as Lawrence Bobo describes, “normalized and for the time being depoliticized,” a remarkable set of oppressive and unequal social conditions.  From his vantage point, as he surveys this new inequality and widening racial divide, it certainly must seem that “you can call it what you want to, it’s still Jim Crow.” 

A Civil Rights Agenda to Ensure Equal Opportunity for People with Criminal Records

Increased access to and use of background checks, criminal record stigmatization, and explicit bans by employers and colleges translate into diminished employment and educational opportunities for minorities. Given the vast overrepresentation of people with color within the criminal justice system, the stigma and disadvantage associated with a criminal history, there is a need for the same “affirmative action” approach developed to counter historic practices that countenanced segregation and discrimination.  The following are key national and state-level activities that would work to end the back door discrimination against people with criminal records.

At The Federal Level:

    • Encourage policymakers to fully fund the 2008 Second Chance Act and pass additional legislation that would eliminate certain bars and barriers facing people with criminal records and support community reintegration programs.
    • Support a Federal standard based on Equal Employment Opportunity Commission guidance on use of background checks for employment purposes when screening people for arrest and conviction records.
    • Strengthen Federal programs that encourage employers to hire people with criminal records such as the Federal Bonding Program and the Work Opportunity Tax Credit.
    • Advocate for full reinstatement of Pell Grant eligibility for people who are currently incarcerated so that they can participate in higher education while incarcerated.
    • Support further reform of the Higher Education Act to eliminate the remaining provisions that bar people convicted of drug offenses from access to federal financial aid.

    At the State Level:

    • Encourage legislators to restore eligibility for the state and private education programs and financial aid that allow people in prison to participate in higher education.
    • Work with legislators and college officials to eliminate application procedures that make it difficult for prospective students with criminal records to get admitted to college.
    • Support effective programs that promote community reintegration and reentry.
    • Advocate for legislation that prohibits employers, housing authorities and other non-law enforcement agencies from inquiring about or using information about arrests that did not lead to conviction.
    • Advocate for legislation that automatically seals/expunges arrests that never led to conviction and minor convictions after a reasonable period of time.
    • Advocate for legislation that lifts automatic bars to employment, occupational licenses, public housing, and political enfranchisement.
    • Advocate for legislation that prohibits across-the-board employment bans based on arrest or conviction records and require employers to assess applicants individually on their merits.
    • Educate policymakers on the important role that voting rights play in reintegration.
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