Perspective Chapter: The Fallacy of Colorblind Constitutionalism as Evidenced through the Prison Industrial Complex and School-to-Prison Pipeline in the United States

Abstract

The American prison industrial complex and school-to-prison pipeline expose the fallacy of colorblind constitutionalism. Colorblind constitutionalists, including originalists and textualists, suppose that in a meritocratic society, race and ethnicity should not factor into legislative and judicial decision making—and that courts should promote an impartial application of legal rules. Nevertheless, racial discrimination and its quantifiable effects on housing, jobs, carceral status, health, and education in the United States, show the fallacy of attempts to pass or interpret colorblind laws in a mythical merit-based society.

1. Introduction

The main question that this research explores is whether the idea of colorblind constitutionalism is salient within the American context? On the contrary, the American prison industrial complex and school-to-prison pipeline expose the fallacy of colorblind constitutionalism. Colorblind constitutionalists, including originalists and textualists, suppose that in a meritocratic society, race and ethnicity should not factor into legislative and judicial decision making—and that courts should promote an impartial application of legal rules. In Grutter v. Bollinger, Justice Scalia, a textualist and originalist, argued that the equal protection clause should be interpreted as colorblind.¹ Nevertheless, racial discrimination and its quantifiable effects on housing, jobs, carceral status, health, and education in the United States, show the fallacy of attempts to pass or interpret colorblind laws in a mythical merit-based society.

Moreover, there is growing evidence of a civil justice gap, where vulnerable individuals, including immigrants, and low-income people of color, are unable to connect with legal services professionals, because of misallocated resources, discrimination, and inadequately trained personnel [1]. These inequalities simultaneously reproduce economic and educational inequalities in impoverished communities, while monopolies of social and financial capital accumulate in wealthier neighborhoods. Research on social inequalities increasingly includes studies on carceral status, asset poverty, racism, and education. For instance, the areas where there is a growing need for legal assistance are consumer finance (37%), health (41%), rental housing (29%), children/child custody (27%), education (26%), disability (23%), and income maintenance (22%).² English language ability, racial and/or ethnic origin, carceral status, and gender all impact how and when individuals receive legal assistance, and the quality of that legal assistance.

During the Civil Rights Movement, Brown v. Board of Education (1954), which led to the desegregation of public schools, the Civil Rights Act of 1964, and consumer protection legislation like the 1971 D.C. Consumer Credit Protection Act, emerged from antipoverty and antiracism activism, alongside social welfare reforms. By the 1990s, a national policy shift geared towards meeting the basic needs of all citizens through social policy reforms like affordable housing provisions in inner cities, revised minimum wage laws, and school nutrition programs ushered in a new wage of scholarly research on how to measure poverty, discrimination, and inequality in the United States.

Yet, research on the overlap between poverty and social inequality as it pertains to class, education, carceral status, racism, and economic opportunity, remains limited. Some of this can be attributed to narrow definitions of social equity that do not consider the effects of systemic racialization, intergroup bias, and negative stereotyping within international civil society organizations, public and private institutions. A definition of equity that might include disentangling the impact of discriminatory customary laws rooted in historical and cultural norms could lead to more equitable long-term outcomes.

In some cases, when studying sociological-historical trends, such as patterns of policing, racial discrimination, and state violence, it also becomes essential to deconstruct the “colonial gaze.” The “colonial gaze” refers to the idea that colonial era systems of power, including slavocracies, controlled modes of production and narratives on space, place, and race. There are international legal frameworks such as the Durban Declaration and Programme of Action (DDPA), which proposes culturally responsive education on people of African descent, research on colonialism and the impact of Transatlantic Slavery, and studies on law enforcement to combat racism and marginalization [2, 3]. Still, there is limited evidence on the progress and international outcomes of the DDPA among UN Member State Parties, and nearly thirty years after the end of apartheid in South Africa [4, 5]. Rather, the United States, United Kingdom, Canada, and other former colonial powers have repeatedly avoided implementation meetings about the DDPA at the associated World Conferences on Racism.

This chapter aims to provide a more historically rooted study of the legacies of slavery, colonialism, and segregation in the United States tied to the formation of the modern prison industrial complex. The work also employs a variety of methods, including data and archival summaries, literature reviews, and Critical Race Theory concepts. There are some research limitations that could be further explored, such as the nexus between gender and policing, or the link between rates of capital punishment sentencing and neighborhood poverty. Consequently, other areas for additional research might include studies on global abolition movements, indigent legal services, the concept of ‘carceral feminism’ and increasing state violence in the Global North and South, digital privacy rights and bio surveillance systems. This chapter does not include ethnographic studies or interviews; however, additional fieldwork will offer long-term insights into the present-day grassroots activism and community stakeholders needed to dismantle the school-to-prison pipeline and prison industrial complex.

2. Louisiana state prison industrial complex: a microcosm

The Louisiana Territory is a microcosm of the effects of plantation slavery and bondage on the development of the American penal system. In the 1790s, slavery and the production of cash crops like cotton and sugar dominated Louisiana economy and society. Anticolonial history text The Black Jacobins describes the prosperity, alongside the brutality of life and forced labor on plantations in the Americas, including the Louisiana Territory and Caribbean islands. “The colonies sent to France 218 millions of sugar, coffee, cocoa, wood, indigo and hides…The total value of the colonies represented 3,000 millions.” [6].

On the laws governing labor and punishments, the Code Noir (Black Code) was in full effect. The Code Noir stratified Louisiana society along color lines with white males enjoying full legal rights and privileges, les gens de couleurs libres (free people of color) holding limited legal rights, and enslaved Blacks regarded as movable property [7]. As the Civil War approached, nearly half of Louisianians were enslaved Black people. “By 1810 the sugar-producing regions of eight parishes had an enumerated population of 7,704 whites and 4,662 slaves, and ten years later over 17,000 whites and nearly 11,000 slaves. Of the 1860 population in Concordia and Madison parishes, slaves accounted for approximately 90 per cent.” [8]. Slave labor transformed Louisiana into the top exporter of sugar, while one-third of all the cotton produced by the United States was grown in Louisiana. Alongside slavery, enslaved Black people could also be jailed in local prisons.

Daily reports from a New Orleans jail between 1820 and 1851 detail how jail wardens were responsible for maintaining registers of slaves who were imprisoned and directed into public works activities [9]. Prison records also indicate how and in what conditions enslaved people were brought to jail (i.e., runaway); and the numbers of males and females “employed in the public works” in prison [9]. There are also notations concerning imprisoned slaves assigned to “chain gangs.” [9]. Some researchers refer to the management of slavery and prison labor between 1835 and 1862 as “double bondage,” which created “antebellum convicts of color.” [10].

The convict leasing system, where prisoners could be leased out to plantations and private companies (i.e., rail and mine companies), even after the Civil War, was also the product of plantation slavery and prison labor that developed in the 1820s. Angola state prison, a Louisiana petitionary, was built on the lands—nearly 8000 acres—of a former plantation. Using the convict leasing system, former Confederate soldier Samuel James used his 1870 lease to the Louisiana State Penitentiary system to sublease Black prisoners into public works activities, such as construction and masonry [11]. Since then, the Angola state prison facilities have expanded to 18,000 acres [11].

Angola remains the largest penitentiary system in the United States. The state of Louisiana has the highest incarceration rate in the world [12]. Nearly 4377 people are serving life sentences without the possibility of parole; while the total number of incarcerated individuals in both prison and jail is 62,534 [13]. Black people also comprise the largest ethnic/racial group of the total incarcerated population in the state of Louisiana [13]. In 2019, the Black imprisonment rate, per 100,000, was 1411; in comparison with the Hispanic imprisonment rate which was 28; and the White imprisonment rate which was 381 [13].

Following the passage of the Thirteenth Amendment, the convict leasing system remained intact because technically involuntary servitude for the purposes of punishment was not illegal.³ The clause “except as a punishment for crime” is the legitimizing basis for the continuation of involuntary servitude as a form of punishment in the American criminal law system. The consequences of slavery and racial discrimination are still evident in the Louisiana state prison industrial complex. The Angola Three concerned the incarceration and subsequent solitary confinement of three African American men, Robert King, Herman Wallace, and Albert Woodfox for nearly three decades [14]. In a report detailing the human rights violations surrounding the case, including lack of due process, evidence, and meaningful review, Amnesty International called solitary confinement of the Angola Three “cruel and unusual punishment.” [15]. In several lawsuits against the United States government, while confined at Angola, Woodfox and Wallace argued that they were unjustly locked up because of their activism with the Black Panther Party (BPP).⁴

Woodfox and Wallace were eventually released from prison but died soon after their release from health complications. In 2001, King was released on appeal after 29 years of solitary confinement. International calls for sanctions against the United States government grew, with several organizations maintaining that as a party to the International Covenant on Civil and Political Rights, and the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the United States government has an obligation to respect the human rights of all citizens, including abolishing “prolonged solitary confinement.”⁵ Yet, inhumane treatment in prisons has continued with some arguing that the root cause of such maltreatment begins in the education system where race, poverty, and class lead to unequal outcomes and disparate treatment, especially for Black and Brown children.

3. School-to-prison pipeline and social inequality

The contradictions of American foreign policy abroad, which has long avowed the importance of universal human rights and the realities of institutional racism and discrimination in national and international affairs have caused significant opposition to American state building policies and programs. British charity War Child⁶ has invoked the UN Convention on the Rights of the Child (CRC), adopted in 1989, and based on the Universal Declaration of Human Rights, to raise awareness about the fundamental rights of children to be free from oppression and discrimination. Article 14 of the CRC articulates the rights of the child to “freedom of thought, conscience and religion.”⁷ Like Article 5 of the Universal Declaration of Human Rights, Article 37 of the CRC further specifies that States must not subject children to “cruel, inhuman or degrading treatment or punishment” including capital punishment and life imprisonment without the possibility of parole.⁸ Nevertheless, many American schools and the juvenile justice system well into the twenty-first century still reflect the effects of overcriminalization, stigmatization, oppression, and discrimination on Black and Brown children.

Stark data trends show the correlation between disciplinary policies in schools and increasing prison rates in some American locales. These trends emphasize the multiple effects of race, violence, and disability in school systems culminating in what researchers have termed, the school-to-prison pipeline.

Research from the NAACP Legal Defense Fund explains that the school-to-prison pipeline is the sum result of zero tolerance policing that has extended to schools, where those who are “problem children” are majority Black: “…In 2003, African-American youths made up 16% of the nation’s overall juvenile population but accounted for 45% of juvenile arrests.” [16]. Suspensions typically land children in juvenile facilities or alternative schools.⁹ Excessive disciplinary punishments in schools are associated with zero tolerance policies and one strike rules in the criminal justice system [17].

Zero tolerance policing developed from former President Clinton’s 1996 tough-on-crime stance. The Housing Opportunity Program Extension Act of 1996 signed into law by President Clinton instituted a one-strike policy in public and Section 8 housing. One strike rules are a form of zero tolerance policing. 24 CFR § 982.310 (2021), as applied to public and Section 8 housing allows owners to terminate a lease by a tenant who interferes with other residents’ right to peaceful enjoyment of the property.¹⁰ The measure was designed to serve as a preventive form of law that would create the framework for tougher public housing admissions screens and give landlords more direct control over tenants and their households.

Similarly, one strike rules in schools have led to increased rates of suspensions. The New York City Department of Education employs School Safety Agents (SSAs), who are also New York Police Department (NYPD) employees. SSAs receive NYPD employee benefits, such as paid leave, medical and dental benefits. Additionally, SSAs enforce one strike/zero tolerance disciplinary policies which often lead to juvenile detention and arrests.

Resistance to zero tolerance policing in schools has surfaced with student walkouts and protests challenging the legitimacy and purported role of SSAs. SSAs are accused of working in consort with the NYPD to enforce excessive one strike policing tactics in schools. Bio surveillance systems such as metal detectors, disproportionately directed to Black and Brown students, have also increased scrutiny over policing tactics and spending. “High schools with permanent metal detectors issued 48 percent more suspensions than schools without metal detectors.” [18]. The effects of bio surveillance systems and one strike policies in schools have multiplied the impacts of the prison industrial complex on Black and Brown communities.

A Critical Race Theory (CRT) framework may help assess the disparate impact of zero tolerance policing and overcriminalization of Black and Brown students on student academic achievement, juvenile, and adult incarceration rates. CRT scholars have long argued that racial stereotypes are embedded within the legal system, evident in prosecutorial bias during voir dire and jury selection to disproportionate sentencing of African American youth in juvenile facilities [19]. In “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” Crenshaw argued that racist ideologies have created a hierarchical social and moral order, wherein Blacks are associated with the least desirable characteristics as shown in the chart “Historical Oppositional Dualities.” [20, 21]. The result is that Black children are presumed ‘guilty’ in certain school settings that are increasingly, administratively, managed as youth detention facilities.

Overall, the prison industrial complex and school-to-prison pipeline represent the multiplier effects of discrimination in the prison and schooling systems. The powers of law enforcement agencies to make arrests, conduct broad searches, and install surveillance systems have expanded significantly over the past two decades. While some of this can be attributed to the Clinton era tough-on-crime policies, such as one strike rules, colorblind politics also impede efforts to mitigate the consequences of biased policing through remedial policy making using race as a factor. Nonetheless, efforts to mitigate the effects of the prison industrial complex and school-to-prison pipeline have evolved over the past decade to include health law reforms and initiatives for those formerly incarcerated.

4. Efforts to mitigate the effects of the prison industrial complex and school-to-prison pipeline

Incarcerated populations face significant challenges re-entering mainstream society, because of chronic illnesses, sometimes contracted within prison, resulting from abuse, and/or social stigma associated with having a criminal record. The health and socioeconomic disparities resulting from policing on schools, families, and communities, have compelled states to adapt measures to mitigate the effects of racism and discrimination specifically through public policy measures. Mental Health Courts (MHCs) permit individuals with mental illnesses to opt for outpatient treatment instead of incarceration, which has been shown to reduce rates of prisoner recidivism. Clients must be clinically and legally eligible for outpatient treatment (certain clinics will only accept patients facing serious offenses versus misdemeanors). Reentry education programs also support former inmates with job counseling and financial literacy courses.

Other significant interventions to reduce prisoner recidivism include the First Step Act of 2018 (S.756). The First Step Act stipulates modified eligibility measures for early release of elderly prisoners (Sec. 603); reforms of good time credit (Sec. 102); and preplanning for release services, such as housing, social security, and wellness programs (Sec. 604). The bill also prohibits discrimination against any prisoner reentry support programs based on religion and race (Sec. 106), while making allocations for youth mentorship programs (Sec. 608) [22]. The U.S. Department of Justice reported that the Bureau of Prisons (BOP) created several reentry programs and community-based partnerships to support skills development, such as the Bureau Rehabilitation and Values Enhancement (BRAVE). In 2022, the Department of Labor (DOL) also announced community reintegration programs, such as vocational training and apprenticeship programs for ex-offenders [23].

However, there are some problematic elements of the First Step Act, such as the PATTERN risk and needs assessment tool, which may include an algorithmic bias that “overpredicts” recidivism rates for Black and Hispanic individuals [24]. Under, “18 U.S.C. §§ 3631(b)(4)(D)-(E) [PATTERN] is assessed annually for (1) predictive validity, (2) dynamic validity, and (3) racial and ethnic neutrality.” [25]. It would seem contradictory that a risk and needs assessment tool within prisons is assessed for “racial and ethnic neutrality” when data show the impact of race conscious policing in schools and communities on incarceration rates. The risk and needs assessment tool should follow a more inclusive model that is adaptive, incorporates race equity impact assessment models, while accounting for the role of racial privilege in perpetuating historically rooted institutionalized forms of oppression, especially in prisons. Beyond assessment instruments, the First Step Act should also outline the social services, affiliate agencies, public accountability and reporting partners that will be engaged in prison reform efforts over the long term under this legislation.

5. Conclusion

Colorblind politics are ahistorical and misguided in the American context. The school-to-prison pipeline and American prison industrial complex reveal how policing laws, incarceration rates and education systems are deeply rooted in histories of racial discrimination and state violence. Process-oriented measures that rebut the flawed logic of zero tolerance policies in schools; and vocational education resources that counter the value-laden assumptions about offenders, ex-offenders, and victims, can help institute transformative changes within the education and court systems. Revisions to school board policies might be a good starting point. For instance, legislators and administrators might add express terms specifying that disciplinary punishments in schools will be processed by school faculty with the involvement of student unions and Parent-teacher associations to ensure fairness, without the need for law enforcement. Other debiasing strategies might include greater inclusion of community-based organizations and culturally responsive interventions to reduce stigma and advance long term and equitable access to justice.