Saturday, March 23, 2019


Excerpted From: Anders Walker, Freedom and Prison: Putting Structuralism Back into Structural Inequality, 57 University of Louisville Law Review 89 (2018) (91 Footnotes) (Full Document)


Structuralism has become a prominent frame for discussions of race and inequality in the United States, part of a larger trend that began in the wake of Barack Obama's presidential victory in 2008. This victory was a moment that inspired some to herald a "post-racial" America and others to insist that persistent disparities continued to plague the United States, particularly in the context of criminal justice. No one made this point more forcefully than legal scholar Michelle Alexander, who argued in 2010 that not only had America failed to move beyond race, but the United States had spawned a new mode of racial control--a New Jim Crow, as she put it--that relied on prisons and police to put "blacks back in their place."

Alexander drew from the language of structuralism to counter conservative claims about incarceration as a logical outgrowth of poor moral choices, noting that "racism manifests itself not only in individual attitudes and stereotypes, but also in the basic structure of society." To illustrate, she invoked the metaphor of a birdcage, positing that "any given wire of the cage may or may not be specifically developed for the purpose of trapping the bird," yet when "arranged in a specific way, and connected to [other wires]," still "serve to enclose the bird and to ensure that it cannot escape." Mass incarceration was precisely such an arrangement, she argued, featuring "a wide variety of laws, institutions, and practices--ranging from racial profiling to biased sentencing policies, political disenfranchisement, and legalized employment discrimination [to] trap African Americans in a virtual (and literal) cage."

Despite her intriguing allegory of a multi-intentioned cage, Alexander spent little time considering whether policies that lacked racial animus may have contributed to mass incarceration, preferring instead to focus on the survival of invidious intent--both explicit and implicit--in the post-Jim Crow era. As she described it, "conservative whites" retained a deep commitment to white supremacy, and simply shifted from overt to covert racism following the end of formal Jim Crow, developing "a race-neutral language" to maintain a "racial caste system."

While many found Alexander's argument compelling, the question of racial animus remained a prominent, if unexplained, aspect of her work. If whites did in fact want to resubordinate African Americans post-Jim Crow, where did this desire come from? Was it learned? Was it the product of a defect of the white mind? Or was it the product of lived experience, i.e. observations of the natural world that were then interpreted in a way that reinforced racial stereotypes? Alexander did not say for certain, preferring to focus on how invidious intent lurked behind ostensibly neutral policies. However, she did hint at a structural source, one that she located in "human nature." "It's not that white people are more unjust than others," she observed, "[r]ather it seems that an aspect of human nature is the tendency to cling tightly to one's advantage and privileges and to rationalize the suffering and exclusion of others."

The question of human nature remains, at its core, a structural one: a case for locating the origins of human behavior, including racist behavior, in the biological structures of the mind. However, Alexander's jump to biological causes proved an odd turn in her otherwise detailed account of a birdcage of ostensibly race-neutral laws and policies, a story that would seem to lend itself to contingency and complexity. Further, much of Alexander's book dedicated itself to unveiling hidden racial animus, not explaining the origins of that animus.

Despite her invocation of structuralism, in other words, Alexander's study of mass incarceration is in fact something quite different. She tells us not where racial animus comes from, but how it masquerades itself, a process more akin to the post-structuralist practice of deconstruction, not the structuralist project of locating underlying causes of particular worldviews, or "mentalités." To illustrate, this essay will provide a brief review of structuralism, locate Alexander's argument in the field, and then demonstrate how critiques of her argument might point us to a more genuinely structuralist--rather than post-structuralist--account of mass incarceration in the United States.

[. . .]

As Forman suggests, the origins of mass incarceration in the United States lie not simply in reconfigurations of racial animus, as Alexander maintains, but much deeper structures as well. Among them were technological shifts that brought black migrants out of the South and then left them struggling to find work in a postindustrial, urban landscape. Complicating this were depletions in urban services, wrought by departures of middle- and upper-middle-class urbanites, coupled with poorly-funded police forces, and an overwhelmed criminal justice system.

Such forces left African Americans trapped in urban cores with few options for dealing with unemployment, substandard housing, and poor education, all factors that contributed to spikes in crime. Complicating this was heroin and other narcotics, which flooded urban streets in the 1970s and contributed-- along with a profusion of firearms--to the creation of violent, illicit markets. Though such markets provided some with an alternate means of survival, they instilled in others a sense that more prisons and police were necessary to restore order.

Missing were services, or what Forman calls a "Marshall Plan," for urban America that African Americans hoped for but never received. Had such a plan been implemented, with jobs, housing, health care, education, and other forms of support, crime may never have reached the levels that it did, and calls for prisons and police may have subsided. However, voters turned the opposite way, moving away from Johnson-era calls for a Great Society and towards a more punitive model, a choice that Forman argues was not simply a plot to reinstate racial caste in the post-Jim Crow era, but a byproduct of a deep-seated belief in moral choice, personal responsibility, and punishment.

The extent to which popular support for punishment drew strength from latent racism is not clear. Alexander argues that it was the single largest factor behind the punitive turn in American criminal justice, a point that could conceivably be explained by the holdover of a racialist mentalité in the United States following the Civil Rights Era, a mentalité reinforced, ironically, by spikes in black crime. Though Alexander does not mention it, for example, her theory of animus could actually be strengthened if it were cast as a response, in part, to the crime wave of the 1960s and 1970s. Such a claim, were it true, would be a more accurate, structuralist account of why animus drove the war on drugs, an account free from speculative claims about human nature, but is still supportive of Alexander's theory. Put another way, conservative whites found their racialist theories confirmed once they read news accounts of black crime.

Of course, such a conclusion would lend itself to a different set of policy implications than straightforward criminal justice reform. According to Forman, America's affinity for incarceration stems from even deeper roots than its views on race, roots linked to biblical notions of punishment and personal moral responsibility. Such ideas are religious in origin, not racist, and tie in closely to core American ideals, including the idea of freedom of religion, freedom of expression, and liberty itself.

In all fifty states, for example, criminal codes focus on personal moral choice as the basis for punishment, ignoring structural causes of crime. An individual's limited number of choices, limited number of opportunities, or limited education is irrelevant to whether or not they will be punished. Children of poor migrants, who leave one region for another, fail to find jobs, and end up trapped in isolated, crumbling urban cores, are treated no differently from children of privileged elites who are born into wealth and opportunity.

Further, American law limits what the government can do for minorities, particularly racial minorities, in the interest of preserving liberty. In a string of cases handed down during the era of mass incarceration, the United States Supreme Court put a series of roadblocks in the way of structural reform. Among these were San Antonio v. Rodriguez, which upheld disparate funding of public schools; Milliken v. Bradley, which prevented multidistrict solutions to problems of segregation, white flight, and urban isolation; and Regents v. Bakke, which declared programs specifically aimed at addressing generalized past harm a violation of equal protection. All of these opinions drew inspiration from the Court's stated commitment to limiting state power and preserving, to the greatest extent possible, personal liberty--including the liberty to move from place to place, whether from South to North or city to suburb, unregulated.

Because most Americans--white and black--believe in individual liberty and personal moral responsibility, we are poorly equipped to address problems that are structural in origin. This includes problems of racial animus, which draw strength from deep seated mentalités but are hard to eradicate-- particularly when the Constitution protects racist speech--as well as deeper problems of demographics, economics, and limited government power. To note this, however, is not to detract from Alexander's story of mass incarceration, but to put it on a more structuralist footing.


Lillie Myers Professor of Law and Professor of History, Saint Louis University, St. Louis, Missouri, Ph.D. Yale University 2003