35 The Intersectionality of Justice
Alexis Castaneda-Perez
Preface
After the events that happened during the spring and summer of 2020, it feels very gratifying to try and help educate others on topics and ideas that I myself didn’t fully understand when I began writing. If there’s anything that I would like for someone to take away from this reading it’s this: for some, it is easy to deny that many of the ideas discussed (such as intersectionality and institutional racism) exist. Human civilization and society stand on the shoulders of those who came before us. Many modern institutions and values in the United States were founded on the antiquated idea that those pertaining to a certain class and race were superior to others. Context matters and it shouldn’t be ignored.
Following is a series of short essays that explore various groups who experience injustice and the ways that social identities overlap with the justice system.
What does Justice look like?
The last few words of the United States Pledge of Allegiance are “with liberty and justice for all.” It’s part of our nation’s identity. The unfortunate reality is that our justice system wasn’t ever made to be fair. The first form of police in the southern part of the United States were slave patrols.[1] Their purpose was to capture escaped enslaved people, to prevent further escape, and to discipline those enslaved. For hundreds of years in the United States the justice system’s job was to enforce the idea of White supremacy, and to limit the rights of women and people of color. This can be seen in Supreme Court cases such as Dredd Scott Vs Sanford, where the Supreme Court ruled that anyone with African ancestry could never become a citizen of the United States, and therefore not be able to sue in federal court. The Supreme Court also seized this opportunity to rule that the Missouri Compromise was unconstitutional. This meant that the federal government couldn’t prevent slavery in certain territories. This decision was unsurprising to many Americans, because seven of the nine Supreme Court justices at the time of the Dredd Scott decision had been appointed by pro-slavery presidents.[2] Chief Justice Roger B. Taney, who authored the majority opinion for the Dredd Scott case, wrote in reference to the legal status of African Americans, “They are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”[3]
While there may not be laws, rules, and regulations that explicitly target people of color (POC) today, there do exist many that their entire origins are based on racism and prejudice (See Housing Chapter: Redlining). In many cases, those whose duty is to exercise the law simply choose to ignore crimes that are being committed against POC. For example: 37 percent of cases involving missing/disappeared Native American women are dismissed by the US Attorney’s Office.[4] To learn about the search for missing and murdered Indigenous women, listen to this 1A podcast.
This is a pattern that goes back to at least the 1920s when local law enforcement neglected to properly investigate murdered Native Americans during the infamous Osage Indian Murders. The Osage Indian Murders show one of the more blatant attempts of a government trying to circumvent justice in order to oppress and marginalize a group of minorities. The Osage people of Kansas were relocated to a reservation in Oklahoma around 1870. It later became known that the Osage reservation is located on top of one of the largest oil deposits in the country. As a result of this, the Osage people saw an extraordinary increase in wealth. The United States Congress eventually passed a law requiring a guardian to assume control of every Osage’s finances until they were deemed ‘competent’. The guardians were of course always White males, who usually didn’t have the best interests of the Osage in mind, often defrauding them.
“Justice” Depends on Race
There currently exists a disparity in the United States that has been rapidly increasing particularly within the last two decades. African Americans face harsher punishments than a White person would for committing the exact same crime. If you compared the sentence of a Black person and a White person for a similar crime, Black people serve sentences around 19% longer than White people do on average. Not only do Black people serve longer sentences, but the more Afrocentric features someone has the more likely they are to be sentenced to death.[5] This recent disparity while having many causes, can largely be attributed to the Supreme Court ruling on the case of United States vs Booker. The Supreme Court ruled that judges didn’t have to strictly adhere to mandatory sentencing regulations that were created in 1984 under the Sentencing Reform Act, a bipartisan bill that aimed to increase fairness and consistency of sentences (whether this reform actually worked could be debated as well, because the Reagan administration doubled down on Nixon’s War on Drugs during his presidency; the policies introduced during this time disproportionately targeted POC). Instead, the federal government found that the United States vs Booker ruling actually has been counterproductive to the Sentencing Reform Act, and actually created more sentences inconsistent with regulations, and a greater racial disparity as well.[6] Since judges can use the regulations as just advisory, their biases and preconceived notions of people of color have a much larger role in the sentencing of minorities than they did before 1984.
The War on Drugs
Originally coined by former president Richard Nixon, the War on Drugs was first started as a campaign by the Nixon administration. Although it wasn’t known as “the War on Drugs” until 1971, drug reform in the United states dates back many years all the way to the beginning of the 20th century when the first drug prohibition policies were being passed. The Harrison Narcotics Tax of 1914 was one of the first federal laws to regulate drugs.[7] On paper the aims of the Nixon campaign were to try and shrink the drug trade in the United States and prevent new addicts through various policies,[8] which includes the creation of the Drug Enforcement Agency (DEA), and giving increased funding to law enforcement agencies (LEA) to actively seek out drug charges. Drug crime was so low on the priority list for most LEAs when the ‘war’ started, that many agencies did not try to enforce the new policy. To try and get all LEA to participate in the war, the federal government provided them with a few incentives. Firstly, they could compete to receive federal cash grants. This allowed many agencies to expand their number of officers and to start a new narcotics task force in order to increase the number of arrests. Simply put, more arrests and convictions equals more money for the agency. In addition to giving money to LEA, the federal government also provided cooperating agencies with Intelligence, special training, and equipment in order to carry out the war. To top it all off the government let agencies keep almost all of the money that they seized in drug raids.[9] Overall this system has led to issues such as the militarization of the police and an increase of POC in prison for nonviolent crimes. Even one of Richard Nixon’s own aides has admitted that the War on Drugs was used as a means to incarcerate Black people.
The Militarization of Police
As a direct result of the War on Drugs, the police in the United States are given more freedom and weaponry than ever before. Concerns have been raised recently regarding what is called “Warrior Culture” that is present in many police departments, where officers are encouraged to take a “warrior’s mindset” This sometimes is in contrast to academy training and is instead encouraged by fellow officers, but not always. The warrior mindset can also be understood as an “Us vs Them” form of thinking. Police are being taught that they live in a hostile environment that is out to get them.[10] Rookie officers are told constantly that their lives are in danger and that they should be scared or else they could die. Many departments say that their first and immediate goal is to make sure officers are unharmed and get home safely; this tends to foster fear in officers and causes overestimation of danger. As a result, officers are more likely to treat ordinary citizens as a threat and to escalate the situation entirely. This counter-intuitively raises the risk of death for both police officers and citizens. In order to benefit our communities to the best of their ability, police must work closely with the communities that they are serving. A heavily armed and paranoid police force does not mesh well with people who are growing ever more distrustful of police. For many decades national confidence and trust in the police have remained at around 60%[11]. Unsurprisingly trust and confidence for the police are much lower in minority communities. African Americans’ trust of the police sits at just 31%.[12][/footnote] While minority communities could greatly benefit from a well-trained police presence, they are often disproportionately arrested, harassed, disrespected, and made victims of police brutality.
Police Brutality
During the 2015 BET awards Kendrick Lamar performed his hit song “Alright” off of his album To Pimp a Butterfly, whose lyrics have been praised by critics for being politically-charged and a socially relevant commentary on the struggles of the modern African American. At some point in the performance, Lamar stood on top of a police car that has been vandalized, a symbolic statement for many viewers showcasing his support for those protesting the killing of unarmed Black men and condemning the police for their actions. In 2014 and 2015 many high profile cases of police brutality emerged. To name a few: Michael Brown, Eric Garner, Walter Scott, and Freddie Gray. There were over 1,059 known police killings in the United States in 2014,[13] many of whom were unarmed. It was during this year that the Black Lives Matter movement gained large traction. Lamar faced backlash from those critical of the Black Lives Matter movement. Lyrics such as “… and we hate po-po, wanna kill us dead in the streets fo-sho” got the attention of Fox News pundit Geraldo Rivera, who said “This is why I say that hip-hop has done more damage to young African-Americans than racism in recent years. This is exactly the wrong message.” Lamar responded by saying “Hip-hop is not the problem. Our reality is the problem of the situation. This is us expressing ourselves.”
People of Color are more likely than White people to be victims of police brutality, African American men, American Indian/Alaskan Native women, and Latino men to be more specific. African American men are the most likely out of all races to be victims. Black men face a 1 in 1000 chance of being killed by police throughout their lifetime.[14] The blame for all of this is all too often placed on minorities. Kendrick Lamar’s words are affirming for many young people. Lamar’s words still ring true today. With the recent death of George Floyd as well as Breonna Taylor, the United States has seen a surge of protest across all 50 states.[15] There are many parallels that can be drawn from the civil rights movement of the 1960’s as well as the 1992 Los Angeles riots, but there is also unique history happening right in front of our eyes. With the relatively recent rise of smartphone cameras, people can now capture police brutality with relative ease, as well as being able to upload it straight to the internet as it happens. While some would hurry to dismiss the problem of police abusing their power as just ‘ a few bad apples,’ we can now see that police brutality isn’t a rare or isolated incident. There is a clear pattern of abuse, one that has been occurring in this country for centuries. It is clear that police brutality is a systemic problem in the United States.
Gender, Underrepresentation, and Intersectionality
With many of the high profile cases of police brutality being about men, women of color are often forgotten in the discussion. Due to this there unfortunately are not many studies particularly focusing on the experiences of minority women. The most oppressed voices are usually the least heard. Women of color are at the intersection of gender and race and are victims of police violence just as much as men of color. Physical violence isn’t the only way women suffer at hands of the police, they are also more likely to face sexual assault as well. Sexual assault is the second most reported form of police misconduct in the United States.[16][17] Transgender women are most vulnerable to sexual violence by the police. Fifteen percent of transgender women report being sexually assaulted while in police custody, while African American transgender women report an astounding 32% assault rate.[18] Some of these instances of sexual violence occur during ‘searches’ where officers look for narcotics or other paraphernalia. Black men are also often victims of police sexual violence as well.[19]During an investigation by Associated Press News on police sexual misconduct, it was discovered that over 1,000 police officers lost their jobs over a six-year period for sex-related crimes. [20] The Say Her Name movement was started to bring light to the issues women of color face. We can quickly see a pattern forming. The more instances of intersectionality in your life, the more likely you are to be a victim of violence and systematic oppression.
Licenses and Attributions
Open Content, Shared Previously
Figure 8.7. Kendrick Lamar by Andrew Stephenson for The Come Up Show. License: CC BY-ND 2.0.
- Potter, G. The history of policing in the United States. EKU Online. https://plsonline.eku.edu/sites/plsonline.eku.edu/files/the-history-of-policing-in-us.pdf ↵
- PBS. (n.d.). Dred Scott's fight for freedom. https://www.pbs.org/wgbh/aia/part4/4p2932.html ↵
- Brewer, R. M., & Heitzeg, N. A. (2008). The racialization of crime and punishment: Criminal justice, color-blind racism, and the political economy of the prison industrial complex. American Behavioral Scientist, 51(5), 625–644. https://doi.org/10.1177/0002764207307745 ↵
- National Indian Council on Aging. (2019, January 21). Inadequate data on missing, murdered indigenous women and girls. https://www.nicoa.org/inadequate-data-on-missing-murdered-indigenous-women-and-girls/ ↵
- United States Sentencing Commission. (2017, November). Demographic differences in sentencing: An update to the 2012 Booker Report. https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2017/20171114_Demographics.pdf ↵
- Department of Justice. (2006, March 15). The impact of United States v. Booker on federal sentencing [fact sheet]. https://www.justice.gov/archive/opa/docs/United_States_v_Booker_Fact_Sheet.pdf ↵
- PBS. Opium through history. Frontline. https://www.pbs.org/wgbh/pages/frontline/shows/heroin/etc/history.html ↵
- Nixon, R. M.(1971, June 17). President Nixon declares "war on drugs." The American Presidency Project. https://www.encyclopedia.com/science/medical-magazines/president-nixon-declares-war-drugs ↵
- Alexander, M. (2020). The new Jim Crow: Mass incarceration in the age of colorblindness. New Press. ↵
- Stoughton, S. (2015, April 10). Law enforcement’s “warrior” problem. Harvard Law Review, 128(6). https://harvardlawreview.org/2015/04/law-enforcements-warrior-problem/ ↵
- Tyler, T. R. (2011). Trust and legitimacy: Policing in the Usa and Europe. European Journal of Criminology, 8(4), 254–266. https://doi.org/10.1177/1477370811411462 ↵
- [footnote]Tyler, T. R. (2005). Policing in black and white: Ethnic group differences in trust and confidence in the police. Police Quarterly, 8(3), 322–342. https://doi.org/10.1177/1098611104271105 ↵
- Mapping Police Violence. About the data. (n.d.). Retrieved September 20, 2020 from https://mappingpoliceviolence.org/aboutthedata ↵
- Edwards, F., Lee, H., & Esposito, M. (2019). Risk of being killed by police use of force in the United States by age, race–ethnicity, and sex. Proceedings of the National Academy of Sciences, 116(34), 16793–16798. https://doi.org/10.1073/pnas.1821204116 ↵
- Burch, A. D. S., Cai, W., Gianordoli, G., McCarthy, M., & Patel, J. K. (2020, June 13). How Black Lives Matter reached every corner of America. New York Times. https://www.nytimes.com/interactive/2020/06/13/us/george-floyd-protests-cities-photos.html?auth=login-google ↵
- Bennett, K. (2018, June 14). Say her name: Recognizing police brutality against Black women. ACLU. https://www.aclu.org/blog/criminal-law-reform/reforming-police/say-her-name-recognizing-police-brutality-against-black ↵
- National Police Misconduct Statistics and Reporting Project. (2010). Police misconduct statistical report. CATO Institute. https://www.leg.state.nv.us/Session/77th2013/Exhibits/Assembly/JUD/AJUD338L.pdf ↵
- Office of Justice Programs. (2014, June). The numbers. https://ovc.ojp.gov/sites/g/files/xyckuh226/files/pubs/forge/sexual_numbers.html ↵
- Chan, S. (2007, August 9). The Abner Louima case, 10 years later. New York Times. https://cityroom.blogs.nytimes.com/2007/08/09/the-abner-louima-case-10-years-later/ ↵
- Sedensky, M. (2015, October 31). Hundreds of officers lose licenses over sex misconduct. AP News. https://apnews.com/fd1d4d05e561462a85abe50e7eaed4ec ↵
An acronym for “person of color” or “people of color.” Can refer to individuals with a skin tone other than white.