The Racialization of Crime: A Brief Genealogy
Content Warning: Sexual Assault
On March 11, 1973, Felix Humberto Brignoni-Ponce was stopped by United States border patrol officers while driving with two passengers in his car. The officers later admitted that they had only stopped Brignoni-Ponce because he and his passengers “appeared to be of Mexican descent.” Both of Brignoni-Ponce’s passengers lacked proper documentation, and Brignoni-Ponce was convicted of two counts of knowingly transporting undocumented immigrants. On appeal, the U.S. Supreme Court found that stopping someone purely on the basis of their race or ethnicity was a violation of the Constitution, and it overturned Brignoni-Ponce’s conviction. However, the Court also held that while law enforcement officers were not justified in stopping the defendant solely based on his ethnicity, they could use ethnicity as one possible indication of illegal activity. This rule remains in effect today.
The Supreme Court’s ruling in United States v. Brignoni-Ponce is a prime example of the racialization of crime. On the surface, the Brignoni-Ponce ruling seems like a positive step toward racial justice. And in some ways, it is. The positive implication of the Court’s ruling is that it is illegal to classify people as criminals solely based on their race or ethnicity; someone’s race or ethnicity cannot automatically make them guilty of criminal activity. The negative implication of this ruling is that it is perfectly legal to use someone’s race or ethnicity to establish whether or not they have been engaging in criminal activity. In effect, the U.S. criminal justice system is more likely to consider someone’s actions to be criminal if they are a person of color.
Michael Omi and Howard Winant were the first to describe the concept of racialization, defining it as “the extension of racial meaning to a previously racially unclassified relationship, social practice, or group.” The U.S. criminal justice system has racialized crime by turning race into a defining feature of criminal activity. Although it is certainly true that the criminal justice system prosecutes white people as well as people of color, and that the label of “criminal” is applied to people of all races and ethnicities, the system has not targeted white people in the same manner it has targeted people of color. Acts that are dismissed when committed by white people are used to turn people of color into criminals.
One classic example of the racialization of crime is sexual assault. A joint ACLU and NAACP amicus brief reveals that before the Supreme Court declared the death penalty unconstitutional in rape cases, it was reserved almost exclusively for black defendants. A study by Marvin E. Wolfgang and Marc Riedel found that even after accounting for thirty-four other variables, black defendants in rape cases were seven times more likely to be sentenced to death than white defendants. The racial disparity was even more severe in cases involving white survivors: “black defendants whose victims were white were sentenced to death approximately 18 times more frequently than defendants in any other racial combination of defendant and victim.” This racial disparity in punishment suggests that the criminal justice system has considered rape to be a more serious crime deserving harsher retaliation by the state when it is committed by black people, and a comparatively less serious crime deserving a weaker retaliation when committed by white people. The punishment disparity simultaneously communicates the message that the state considers rape to be a more serious crime when it is perpetuated against white women, and a less serious crime when perpetuated against women of color. The perceived seriousness of sexual assault, as well as the state’s response to it, was largely dependent not on the act itself, but rather on the race of both the accused and the survivor.
The racialization of crime in the United States can be traced all the way back to the earliest legislation directly addressing race relations. The slave codes that began to be enacted in 1667 explicitly defined criminal acts in terms of race. For example, an enslaved person who “lifted his hand against” or directed “provoking or menacing language” toward a white person could be punished with thirty-nine lashes. At the same time, however, most slave codes made it legal for white people to beat and whip enslaved people. According to the slave codes, the act of inflicting corporeal distress—or even threatening corporeal distress—on another person took on radically different meanings depending on the races of the people involved. Beating or whipping another person was legal as long as the person doing the beating was a white slaveowner and the person being beaten was black and enslaved. Simultaneously, “menacing” another person was illegal if the person doing the menacing was black and enslaved and the person being menaced was white. The defining factor that establishes criminality in these cases was not the act itself, but the race of the person performing the act.
The kind of overt discrimination present in the slave codes is no longer legal. Equal rights legislation such as the Thirteenth Amendment, the Civil Rights Act of 1866, the Fourteenth Amendment, and the Civil Rights Act of 1964 have restricted the extent to which statutes can explicitly discriminate on the basis of race. However, this does not mean that crime is no longer racialized. The way in which the U.S. racializes crime has shifted to align formally with the parameters of equal rights legislation, but the U.S. persists in treating criminality as a racialized issue.
Patricia Hill Collins, a sociology professor at the University of Maryland, refers to this kind of shift in how the system approaches race as “the new racism.” Collins argues that racism has adapted to increasing social stigma against stereotypically racist acts by taking on more subtle forms that falsely appear to be race neutral. The result is new instantiations of the same underlying racist systems and beliefs. In Collins’s words, “the new racism . . . has not replaced prior forms of racial rule, but instead incorporates elements of past racial formations.” Criminal statutes certainly appear to have progressed from their highly racialized history—and in some ways they have. However, the positive racial reforms are in many ways only surface-level achievements, cloaking deeper practices of racial injustice.
In terms of the criminal justice system, the “new” racism has operated by shifting from explicitly using laws and policies that openly discriminate against racial and ethnic minorities to linking criminality implicitly with race. Instead of constructing disparate laws that only apply to people of color, the system now builds suspicions about people of color into formally race-neutral laws. As the Brignoni-Ponce decision affirms, assuming someone is a criminal based on their race is a violation of their most fundamental rights. Someone’s race can, however, legally mark them as suspicious. In the U.S., no one can legally be found guilty because of race alone, but their race can contribute to the presumption of guilt.
The implications of the racialization of crime in the U.S. are profound, both for people of color and for white people. For people of color, the racialization of crime means that they are disproportionately targeted and negatively impacted by the criminal justice system. As of 2020, black Americans make up 13% of the U.S. population but 40% of the incarcerated population. For many incarcerated people, the effects are devastating. Tommy Curry, a professor of philosophy at Texas A&M, argues that “Black males who come in contact with the criminal justice system are stained by the crest of the state. Black men are not only dehumanized as prisoners, but their lives are forever affected as criminals.” Formerly incarcerated persons can legally be denied access to crucial services and activities that are often necessary for their survival outside of prison, such as employment and federal assistance programs—including Medicaid, food stamps, and public housing. Many of the people who are most impacted by mass incarceration are also the most vulnerable people in U.S. society. For example, LGBTQ+ people of color and low-income LGBTQ+ people are more likely to be incarcerated than the general population and to experience abuse during their time in prison.
For white people, the racialization of crime means that the criminal justice system has largely protected their rights and privileges. Legal scholar Cheryl Harris argues that “American law has recognized a property interest in whiteness that, although unacknowledged, now forms the background against which legal disputes are framed, argued, and adjudicated.” By disproportionately shielding white people from incarceration and the negative consequences that come with it, the criminal justice system has implicitly prioritized the protection of whiteness above the rights and wellbeing of people of color. Thus, the racialization of crime is essentially an investment in maintaining white supremacy.
In the U.S., issues of crime have always been tied to race. This remains as true today as it was when explicit racial discrimination was legal. Although U.S. criminal justice laws and procedures are now technically race-neutral, they still contain implicit assumptions about the relationship of race to crime that have constructed a legal framework that further marginalizes people of color while simultaneously protecting white people and white power. This is the racialization of crime.
Miranda Pilipchuk (she/her/hers) is a PhD candidate in the Department of Philosophy at Villanova University, specializing in feminist theory, philosophy of law, and critical race theory. Her previous work has been published on the Blog of the APA, and the APA Newsletter on Feminism and Philosophy.