Around 2011, Leprino Foods—a Denver-based cheese supplier to national pizza chains like Papa John’s, Domino’s, and Pizza Hut—lost its primary source of buffalo milk, located in India. The solution, for Leprino, presented itself in a historically familiar form here in America: prison labor.
Between 2018-19, prisoners at Colorado Correctional Industries provided Leprino with more than 600 tons of buffalo milk at a cost per pound nearly half the going market rate.1 In other words, prison labor afforded this multibillion-dollar corporation access to a difficult-to-source ingredient at a markedly reduced price, thereby conferring Leprino Foods a critical competitive edge within its industry and leaving a portion of Colorado’s prison population—whose Black demographic represents more than 4 times the state’s total2—exploited and excluded.
This arrangement, wherein prison labor that is disproportionately Black can produce goods at an average cost as low as $0.86/hr.,3 traces back centuries. With the 13th amendment permitting slavery as a “punishment for a crime,” state and local governments began devising ways to criminalize the lives of the newly emancipated in order to reconstruct the nominally outlawed institution of slavery. To that end, beginning in 1865, ‘Black Codes’ were passed. These laws facilitated the Southern states’ preservation of free Black labor as a means to maximize profit. In effect, they authorized police to compel the observance of myriad trivial offenses like, for instance, being unemployed. And when the fines issued could, of course, not realistically be paid by a group of people so lacking in resources, the funneling of freed slaves into decidedly racist venues of ‘justice’ began.
Contemporary policing tactics still serve that foundational purpose of systematically reinforcing and reconstituting ADOS’s bottom caste status and helping to contract out an inexpensive source of labor for corporations. Whether through ‘broken windows’ policing, abusing traffic stops in order to extract fines and fees, or biased, so-called ‘predictive’ policing programs, American policing unquestionably exploits the prevailing instability in Black communities—instability that is owed to a legacy of devastating federal, state, and local policies.
Indeed, what we recognize today as American policing first emerged in the antebellum South as organized slave patrols.4 At that time, law enforcement existed for the express purpose of safeguarding the slave-owning class against the property loss of their slaves. And while policing has since evolved (so to speak) to carry out a larger set of functions, the profession’s roots in slave patrol practices nonetheless remain glaringly evident. To cite but one obvious example, stop-and-frisk policies—which became law of the land in major U.S. metropolitan areas—promoted law enforcement’s targeted harassment of the Black community. Reports like those put out by former NY Attorney General Eric Schneiderman, which showed that only 3% of New York’s 2.4 million stop-and-frisk arrests made between 2009-12 led to convictions,5 speak to the discriminatory nature of these policies and their core intent of simply harassing the Black community. And in those instances where a stop-and-frisk encounter between a police officer and a Black person did lead to an arrest, the judicial institution that awaited that person would be no less discriminatory.
Like policing, the courts have historically functioned to support the interests of racist individuals and the institutions they control and operate. From the moment a Black person enters the criminal justice system, the effects of a legacy of wealth deprivation assert themselves in life-altering ways. They work to undermine the rights ostensibly guaranteed to all citizens, and they corrupt the putatively fair and impartial process of ensuring that justice is served. For example, the Department of Justice estimates that up to 90% of criminal defendants cannot afford to hire a defense attorney.6 The alternative—indigent legal services—is notoriously underfunded by the state, and less than a quarter of indigent defense systems receive enough funding to effectively represent the defendants assigned to them.7 As a result, many criminal defendants receive inadequate or ineffective assistance from their assigned counsel. The consequences of the court’s indifference to these realities—which disproportionately impact Black people—are horrifying: a 2010 Innocence Project review of the first 255 DNA exonerations in the U.S. found that 81% of those cases saw ineffective assistance of counsel claims denied by the courts.8
The disparities stemming from the Black community’s lack of wealth, at every point in the criminal justice system, cannot be overstated. When it comes to bail, it pressures Black arrestees to accept less favorable plea deals rather than remain in pre-trial detention for an indefinite amount of time. To wit, one review of the data found that fully 95% of people arrested end up incarcerated via plea deal bargaining.9 Data also reveals that Black defendants who accept plea deals receive longer sentences than white defendants who do the same.10
Even upon release—a time that suggests the possibility of a new start in society—the wealth disparities persist and belie the promise of opportunities that lay beyond the prison walls. After the sentence is served, or upon parole, a Black person is simply consigned to the community from which they came, a community that is marked by a vast privation of wealth and resources. And when debt from court fees looms large, the burden to discharge that debt is borne by members of the community who are ill-equipped to handle these kinds of excess expenditures.
A study conducted in Alabama, for example, indicated “unambiguously that middle-aged African-American women were more likely than any other group to be paying someone else’s [court] debt.”11 The report goes on to say that “[w]hile Alabama’s court debt system is damaging to all lower-income Alabamians once they are caught up in it, other factors mean that its harms are disproportionately inflicted on…the state’s African-American community.”12 Not surprisingly, topmost among these ‘other factors,’ according to the study, are the ways in which the “legacy of slavery and Jim Crow, coupled with modern-day structural racism, has left African-American Alabamians disproportionately impoverished as compared to their white peers.”13 The consequences of this intentional deprivation and structural racism as it relates to the possibility of healthy societal reintegration following a prison sentence cannot be overstated. A study that followed formerly incarcerated men and women through their first year of release from a Massachusetts state prison illustrates the point. The study revealed that, while white ex-convicts ranked nearly 3 times less employable than their Black counterparts at the time of their release, their employment rates after prison were 26% higher than those of Black workers.14 When researchers observed wages between the two groups, they found that Black monthly earnings were half that of white ex-convicts; those earnings, at $700, were nearly 50% below the federal poverty line for individuals.15 As the study notes, “[W]hites enjoyed higher rates of employment and earnings after incarceration…[despite being] relatively disadvantaged by their health, criminal involvement, drug use and sociability.”16
Put another way, punishment for a crime in the American criminal justice system—when the individual is Black—extends well past the actual duration of that person’s imprisonment. While imprisoned, their overall life earnings are dramatically attenuated and their attempt to re-integrate into an already deeply biased society is one undertaken at a profound material disadvantage. Consider the case of Curtis Ray Davis II, who, while working in a quail barn in Louisiana State Penitentiary, earned just $0.02/hour. After 20 years of work, Davis netted a mere $1,200.17 Which is $0.16 per day. Davis, now the executive director of Decarcerate Louisiana, describes his experience in prison in chilling terms: “I spent 25 years in slavery. It was traumatizing, it was painful, physically and mentally. I felt sub-human, demeaned, socially dead.”18 Davis’s words speak directly to what has long been and still today remains a core aim of the American criminal justice system; namely, the wholesale devaluation of Black life. Efforts to meaningfully reform this system and its deplorable effects have heretofore been uninspired and ultimately fruitless. In many cases, the reforms have functioned purely as a boon to the bottom line of private companies. For instance, even as we putatively make progress in moving away from state-run facilities as a site of imprisonment toward so-called alternative solutions like electronic monitoring devices, the attendant costs incurred by surveillees (no doubt disproportionately Black Americans) function only to entrench the economic and social marginalization of the group. The outcome is the awful and tragic permanence of Black America’s position in society, the same position that the group was made to occupy so many centuries ago, at the very bottom.
The ADOS Advocacy Foundation proposes the following policies that we believe will effect transformative change within the criminal justice system:
- The U.S. Department of Justice and Bureau of Prisons shall be required to collect disaggregated data in all instances to properly document the distinct and ongoing impact of the criminal justice system’s disproportionately negative outcomes for ADOS.
- ADOS must be designated and treated as a protected class at all levels of the criminal justice system. Legal doctrine and model jury instructions must be transformed so that the adjudication of an ADOS person’s criminal culpability—and any resulting sentence—will always be subject to an analysis of how that individual has been made to live by this country’s failure to meaningfully atone for the legacy of chattel slavery and to make a material repair to their ancestors. Evidence that an ADOS defendant’s behavior has its source in the resource deprivation and bottom-caste reality of daily ADOS life should, at worst, be partially exculpating.
- Other reforms, most notably some of the provisions of the failed George Floyd Justice in Policing Act, should be passed into law. These include, lowering the standard for proving deprivation of rights under color of law (making it easier to sue bad actors in law enforcement); reforming qualified immunity; bulking up federal pattern and practice investigations and ensuring consequences for states and locales violating the Constitution; mandating independent investigations into police misconduct; directing federal ”COPS” program grant money to local Civilian Complaint Review Boards; creating uniform standards for and accreditation of law enforcement agencies (in terms of diversity, oversight, schools, victim services); redirecting the Justice Department’s “Community Relations Service” funding to mediation programs; creating a federal task force on law enforcement oversight, a national police misconduct registry, and certification requirements for hiring; pass the “End Racial Profiling Act” which would make disparate impact proof prima facie evidence of illegal racial profiling by law enforcement, allow for attorney’s fees in successful cases, and require departments to certify that they do not profile and have policies in place to guard against racial profiling; develop a report from the Office of the U.S. Attorney General on racial profiling by law enforcement, how law enforcement must approach training on bias and an officer’s duty to intervene; a full federal chokehold ban and the creation of civil rights cause of action for illegal use of chokeholds; pass the “Peace Act” which would limit law enforcement’s legal use of lethal force and require verbal warning where such force might be justified, and limit use of any justification defense; redirect COPS program grant funding to hire law enforcement officers who actually reside in the neighborhoods they serve (with data on officers’ relocation and the resultant impact on crime required to be reported); pass a ban on the use of facial recognition technology by federal law enforcement agencies, and; closure of the “consent loophole” clause (which provides law enforcement a defense against claims of sexual abuse by law enforcement as against detained individuals) and require states and locales to do the same in order to receive federal funding.
- Support communities and individuals who have experienced crime-related trauma through investing in programs with credible messengers; increasing mental health support and funding restorative justice mediation centers; making significant public transit improvements, increasing access to affordable public housing, and making investments in schools and well-paid teachers; fighting to reduce pre-trial detention, end cash bail, eliminate ordinances that criminalize poverty, and cut contracts with private prison companies and vendors; removing law enforcement from schools and creating committees to oversee and create holistic safety plans for schools with restorative justice including peer-to-peer de-escalation training; ending the practice of “prison gerrymandering;” abolishing the use of confessions as evidence in criminal proceedings; mandating the use of racial impact studies when considering new criminal justice policy and racial impact audits in order to take the existing racist laws off the books; eliminating all mandatory minimum sentences, “three-strike” laws, and sentencing enhancement measures; reforming and reining in police unions and reforming the handling of police pensions; enshrining 16 and 17 year olds as children under the law and transferring all of those youth out of adult courts, and; promoting nationally-consistent and actually-reparative compensation procedures and amounts for all wrongfully convicted individuals.
- Finally, where state and local law enforcement agencies are found to engage in patterns or practices of conduct which deprive Black people of their Constitutional rights, privileges, or immunities, the U.S. Department of Justice must pursue total abolishment of those departments or agencies. Where anti-Black sentiment and intentions are rife within state and local law enforcement agencies, those agencies must not be permitted to continue operating as law enforcement.
- Brown, H. Claire. “How Corporations Buy-and Sell-Food Made with Prison Labor.” The Counter, 9 Sept. 2021, https://thecounter.org/how-corporations-buy-and-sell-food-made-with-prison-labor/.
- Wilson, Forest. “New Report Highlights Racial Disparity in Colorado’s Booming Prison Population.” The Colorado Independent, September 15, 2018. https://www.coloradoindependent.com/2018/09/14/aclu-prison-reform-racial-disparity/.
- Sawyer, Wendy. “How Much Do Incarcerated People Earn in Each State?” Prison Policy Initiative, April 10, 2017. https://www.prisonpolicy.org/blog/2017/04/10/wages/.
- Lepore, Jill. “The Invention of the Police.” The New Yorker, July 10, 2020. https://www.newyorker.com/magazine/2020/07/20/the-invention-of-the-police.
- Schneiderman, Eric T. Rep. A Report on Arrests Arising from the New York City Police Department’s Stop-and-Frisk Practices. New York, NY, 2013.
- Buckwalter-Poza, Rebecca. “Making Justice Equal.” Center for American Progress, December 8, 2016. https://www.americanprogress.org/article/making-justice-equal/.
- Hollinger, Abigail. “Funding Indigent Defense: A Judicial Solution to a Legislative Failure .” The George Washington Law Review 88 (November 18, 2020): 195–224.
- “When the Defense Fails.” Innocence Project, September 1, 2010. https://innocenceproject.org/when-the-defense-fails/.
- Thompson, Heather Ann. “The Racial History of Criminal Justice in America.” Du Bois Review 16, no. 1 (February 26, 2020): 221–41.
- Berdejó, Carlos, Criminalizing Race: Racial Disparities in Plea Bargaining (September 13, 2017). Boston College Law Review, Vol. 59, 2018 (Forthcoming), Loyola Law School, Los Angeles Legal Studies Research Paper No. 2017-39, Available at SSRN: https://ssrn.com/abstract=3036726
- Rep. Under Pressure: How Fines and Fees Hurt People, Undermine Public Safety, and Drive Alabama’s Racial Wealth Divide. Birmingham, AL: Alabama Appleseed, 2021.
- Western, Bruce. “Racial Inequality in Employment and Earnings after Incarceration.” (2017).
- Paterson, Blake. “Slavery in Louisiana’s Prisons? This Lawmaker Wants Voters to Outlaw Forced Labor for Good.” houmatoday, April 8, 2021. https://www.houmatoday.com/story/news/state/2021/04/08/slavery-louisianas-prisons-lawmaker-wants-voters-outlaw-forced-labor-good/7137837002/.