The State, Law, and the Prison System

In high school civics and social science classes, students are often taught that the United States is a democratic nation-state because the government is composed of three separate branches—the Executive, the Judicial, and Legislative branches—that work to check and balance each other. Students are told that anyone can run for office and that people’s votes determine the direction of the nation. However, as economist Joseph Stiglitz (2011) points out, the fact that the majority of US senators, representatives in the House of Representatives, and Executive-branch policy makers originate from the wealthiest 1% of the society should give one pause to rethink this conventional narrative.

We take a more critical view of the state than that of high school civics textbooks. We understand the State to be an array of legislation, policies, governmental bodies, and military- and prison-industrial complexes. We also observe that the line between civil society and the state is more fluid than solid—citizens and groups of citizens often take extra-judicial actions that bolster the power of the state, even if they are not officially agents  of the state. This definition offers a more expansive understanding of the ways in which government, civil society, and the global economy function together in ways that often reflect the interests of domestic and global elites and international corporations. In the following pages, we highlight ways that the state—in its various dimensions—plays a central role in maintaining and reproducing inequalities.

The state plays a significant role in reinforcing gender stratification and racism through legislation and policies that influence numerous institutions, including education, social welfare programming, health and medicine, and the family. A primary example of this is the prison system and the “War on Drugs” begun in the 1980s by the Reagan Administration. According to Bureau of Justice Statistics, there were over 2.1 million people incarcerated in the United States at the end of 2015 (Kaeble and Glaze, 2016). Furthermore, over 6.7 million were either on probation, on parole, or in jail or prison. This means that roughly 2.7% of the adult population of the United States was somehow under surveillance by the US criminal justice system. Indeed, the United States has the highest number of people incarcerated than any other country on the face of the globe. These rates of incarceration are largely the result of the “War on Drugs,” which criminalized drug use and distribution.

A significant aspect of the “War on Drugs” was the establishment of mandatory minimum sentencing laws that send non-violent drug offenders to prison, rather than enrolling them in treatment programs. The “War on Drugs” has disproportionately targeted people of color. Seventy percent of inmates in the United States are non-white—a figure that surpasses the percentage of non-whites in US society, which is approximately 23%, according to the 2015 US census. That means that non-white prisoners are far over-represented in the US criminal justice system. While the incarceration of women, in general, for drug-related offenses has skyrocketed 888% between 1986 and 1999, women of color have been arrested at rates far higher than white women, even though they use drugs at a rate equal to or lower than white women (ACLU 2004). Furthermore, according to Bureau of Justice statistics from 2007, nearly two-thirds of US women prisoners had children under 18 years of age (Glaze and Maruschak, 2010). Before incarceration, disproportionately, these women were the primary caregivers to their children and other family members. Thus, the impact on children, families, and communities is substantial when women are imprisoned. Finally, inmates often engage in prison labor for less than minimum wage. Corporations contract prison labor that produces millions of dollars in profit. Therefore, the incarceration of millions of people artificially deflates the unemployment rate (something politicians benefit from) and creates a cheap labor force that generates millions of dollars in profit for private corporations. How do we make sense of this? What does this say about the state of democracy in the United States?

Feminist activist and academic Angela Davis argues that we can conceptualize the prison system and its linkages to corporate production as the prison-industrial complex. In the book Are Prisons Obsolete?, Davis (2003) argues that more and more prisons were built in the 1980s in order to concentrate and manage those marked as “human surplus” by the capitalist system. She sees a historical connection between the system of slavery, and the  enslavement of African Americans until the 19th century, and the creation of a prison-industrial complex that not only attempts to criminalize and manage Black, Latino, Native American, and poor bodies, but also attempts to extract profit from them (through prison labor that creates profit for corporations). Thus, the prison-industrial complex is a largely unseen (quite literally: most prisons are located in isolated areas) mechanism through which people of color are marginalized in US society. Similarly, in The New Jim Crow, Michelle Alexander (2010) argues that mass incarceration has created and maintains a “racial caste system.” She emphasizes how mass incarceration debilitates individuals and communities through stigma, job discrimination, and the loss of ability to vote in many states. Similarly, sociologist Loic Waquant (2010) argues that mass incarceration within the criminal justice system functions as an increasingly powerful system of racial control.

In light of the prison-industrial system and its racialized and gendered effects, how far has the US really come in terms of racial and gender equality? Here, we point to the difference between de jure laws and de facto realities. De jure refer to existing laws and de facto refers to on-the-ground realities. While the Civil Rights Act of 1964 legally required an end to de jure segregation, or segregation enforcible by law, in education, voting, and the workplace, de facto racial inequality still exists. We can see clearly, just looking at incarceration statistics, that even though explicit racial discrimination is illegal, state policies such as the War on Drugs still have the effect of disproportionately imprisoning people of color.