The Carceral State: Legal Histories of American Unfreedom

U.S. Law and Race Initiative Author

11/26/2024 Added

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Join our HIST 115: And Justice For All class for a discussion on the Carceral State with guest speaker Professor Taja-Nia Henderson, author of The Ironic Promise of the Thirteenth Amendment for Offender Anti-Discrimination Law, moderated by Danielle Jefferis from UNL's College of Law.

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[00:00:03.760]All right, I'll get started with the introduction.
[00:00:06.560]Thanks for coming everyone.
[00:00:08.240]We're really excited to have you for our webinar today.
[00:00:11.900]We are, good morning.
[00:00:14.440]Thank you for joining us today
[00:00:15.800]for the final U.S. Law and Race Initiative webinar
[00:00:18.940]in our fall 2024 series.
[00:00:21.700]My name is Anne Gregory
[00:00:23.020]and I'm a second year PhD student in history
[00:00:25.940]at University of Nebraska-Lincoln
[00:00:27.960]studying U.S. legal and digital histories.
[00:00:31.340]Launched with support in January of 2023,
[00:00:35.040]the U.S. Law and Race Initiative explores new approaches
[00:00:38.080]to research, teaching, and public engagement
[00:00:40.620]with the history of law, race, and racialization
[00:00:43.280]in the United States.
[00:00:45.240]Funded by the Mellon Foundation,
[00:00:47.180]the initiative brings together
[00:00:48.540]large university teaching programs,
[00:00:51.560]immersive new forms of digital media content
[00:00:53.900]and community partnership storytelling
[00:00:56.240]to create a research curricular and collaboration hub
[00:00:59.760]focused on the efforts of racially minoritized populations
[00:01:03.560]in the U.S. to pursue racial justice through the law.
[00:01:07.920]Doctors Will Thomas, Jeannette Eileen Jones,
[00:01:09.940]and Katrina Jagodinsky are the faculty leads
[00:01:12.280]on the U.S. Law and Race Initiative,
[00:01:14.340]along with an array of expert partners
[00:01:16.820]in the College of Arts and Sciences
[00:01:18.400]and College of Law at UNL.
[00:01:21.820]We are hosting a series of webinars
[00:01:23.900]deepening that national conversation
[00:01:25.640]on the legal history of race.
[00:01:27.240]Today, we are excited to host a discussion
[00:01:30.300]about the carceral state
[00:01:31.800]and histories of American unfreedom.
[00:01:34.700]We are honored to have with us Professor Taja-Nia Henderson.
[00:01:39.280]Professor Henderson's scholarship focuses
[00:01:41.200]on the historical impact of punishment regimes
[00:01:44.320]on property systems in the U.S.
[00:01:46.580]She is particularly interested
[00:01:48.740]in the legal histories of incarceration,
[00:01:51.400]including prisoner release and reentry and chattel slavery.
[00:01:56.040]In 2016, she was a fellow at the John W. Klug Center
[00:01:59.560]at the Library of Congress.
[00:02:02.260]Professor Henderson's work has appeared
[00:02:03.980]or is forthcoming in Iowa Law Review, NYU Law Review,
[00:02:08.580]Stanford Journal of Civil Rights and Civil Liberties,
[00:02:12.000]Lewis and Clark Law Review, Chicago-Kent Law Review,
[00:02:15.920]Columbia Journal of Race and Law,
[00:02:18.080]the Maryland Law Journal of Race, Religion, Gender, and Class,
[00:02:22.520]and the Law and History Review.
[00:02:24.240]Her research has been supported by fellowships and grants
[00:02:27.260]from the John W. Klug Center at the Library of Congress
[00:02:30.280]and the New York Public Library,
[00:02:32.500]the American Philosophical Society, and others.
[00:02:36.360]Our host, Professor Danielle Jefferis,
[00:02:39.300]is an assistant professor at the UNL College of Law.
[00:02:43.300]Professor Jefferis' research focuses
[00:02:44.640]on theories of punishment
[00:02:46.080]and the law and policy governing prison and detention,
[00:02:49.580]with an emphasis on the for-profit prison industry
[00:02:52.800]and immigration-related confinement.
[00:02:55.700]She takes both critical and comparative approaches
[00:02:57.960]to her work, looking at carceral systems,
[00:03:00.460]practices, and theories around the world.
[00:03:03.280]She has provided expert commentary on prison
[00:03:05.760]and detention issues for national
[00:03:07.620]and international media outlets,
[00:03:09.240]including Vice, Mother Jones, and now this,
[00:03:12.420]and has been solicited as an amicus curae
[00:03:15.220]for cases involving prison law
[00:03:16.980]and prisoners' rights in courts around the country.
[00:03:20.720]Professors Jefferis and Henderson
[00:03:22.280]are going to be in conversation for about 30 minutes
[00:03:24.840]before we turn to your questions.
[00:03:27.420]Please feel free to submit your questions at any time
[00:03:30.720]using the chat function on Zoom.
[00:03:33.320]Live captioning will be available to audience members
[00:03:35.720]and please enjoy our conversation.
[00:03:41.790]Thank you so much, Anne, for those introductions
[00:03:43.930]and for welcoming us here this morning.
[00:03:46.730]Thank you, especially to Dr. Jones,
[00:03:48.130]for having us here and Dr. Henderson
[00:03:49.850]for being here and being our guest speaker.
[00:03:53.370]I wanna just echo what Anne said
[00:03:55.190]to invite everyone to submit questions.
[00:03:57.250]I'll keep an eye on the chat
[00:03:58.490]and keep those questions in the queue.
[00:04:00.850]And to maximize the time
[00:04:01.870]that we all have together this morning,
[00:04:03.230]I'm gonna turn it right over to Dr. Henderson.
[00:04:05.030]I think she has a few remarks to open up this morning
[00:04:07.290]and then we'll start this conversation.
[00:04:09.510]So thanks so much.
[00:04:11.530]Good morning, everyone.
[00:04:13.470]And thank you so much for having me
[00:04:15.870]to Professor Jefferis and Professor Jones
[00:04:18.910]and everyone else who is affiliated
[00:04:21.190]with the Race in the Law Initiative at Nebraska.
[00:04:24.070]It has been a delight to be in community with these folks
[00:04:28.210]and to be learning from them.
[00:04:30.010]And I just wanna thank everyone.
[00:04:32.490]I am going to share some slides to help us get started.
[00:04:42.940]Hopefully this is visible.
[00:04:47.780]So one of the things that we are, I think,
[00:04:52.540]talking about today and always talking about
[00:04:55.260]when we're talking about the question of race
[00:04:57.220]and the carceral systems is the criminalization
[00:05:01.240]of what can only be described as Blackness,
[00:05:05.180]sort of the imputation of some sort of criminal activity
[00:05:09.200]or criminal responsibility or criminal debt
[00:05:12.640]or something criminal associated
[00:05:15.180]with Blackness and Black skin.
[00:05:19.300]And this is something that we see
[00:05:23.760]throughout the modern era, of course,
[00:05:25.920]but we also see it throughout American history
[00:05:29.260]and into the colonial era.
[00:05:31.960]And so I wanna talk a little bit about that history
[00:05:34.680]to help set us up for our conversation.
[00:05:39.000]You may know this, but I think it's helpful
[00:05:42.640]to just have a reminder at the end of last year,
[00:05:45.920]there were over 1.8 million people
[00:05:48.220]who were incarcerated in jails and prisons in the US.
[00:05:52.500]This number is actually higher than it was five years ago.
[00:05:57.180]So we have more people in custody, 1.8.
[00:06:01.780]Of the 1.8 million, about 37% of these people
[00:06:05.200]identify as Black, about 23% self-identify as Hispanic.
[00:06:11.360]And so it's important to keep in mind
[00:06:13.760]that when we are talking about our carceral systems
[00:06:16.000]in this nation, we are talking about a system
[00:06:19.920]where more than 59% of everyone who is inside
[00:06:23.760]is either Black or Latino.
[00:06:27.000]Another about 180,000 identify as multiracial
[00:06:30.960]or of Asian, Native American, or Hawaiian descent.
[00:06:35.660]And so in all, you have almost 70% of everyone
[00:06:39.640]who is on a custodial term of some type
[00:06:44.280]who's a person of color in this country.
[00:06:47.120]And this number doesn't even include the thousands of people
[00:06:50.740]who are held in immigration detention facilities
[00:06:54.120]by Homeland Security.
[00:06:55.120]These are the ICE facilities.
[00:06:56.860]There are another about 38,000 people
[00:06:59.220]who are held every day in an ICE detention facility.
[00:07:05.100]Now, I told you before that this number is higher
[00:07:07.600]than it was in 2008, because in 2008,
[00:07:09.880]we were sort of feeling a little bit optimistic
[00:07:11.660]about prisons in this country
[00:07:13.340]because the overall prison population
[00:07:15.620]had been steadily declining.
[00:07:19.320]The challenge though, is that now we are seeing
[00:07:22.960]a renewed interest in criminalization
[00:07:25.980]in long prison terms, in harsher prison sentences.
[00:07:30.580]And we saw this just two weeks ago on election day
[00:07:33.540]when citizens in the state of California, for example,
[00:07:37.380]which is considered, for some reason,
[00:07:40.340]is considered liberal when it comes
[00:07:42.340]to criminal justice policies,
[00:07:43.620]when somehow California incarcerates more people
[00:07:45.960]than any other state in the union.
[00:07:48.820]But sort of people have stereotypes about Californians
[00:07:52.980]and about California politics.
[00:07:56.240]Voters in California voted to re-instantiate
[00:08:00.840]harsher criminal penalties, differ sentences,
[00:08:04.940]some mandatory sentences for certain,
[00:08:11.660]crimes in California.
[00:08:13.120]And so everything that I'm saying today
[00:08:16.260]is really against a backdrop of what I see
[00:08:18.820]as retrenchment in this area,
[00:08:21.580]retrenchment in this space.
[00:08:23.760]And I encourage you, if you are interested in this,
[00:08:25.840]there's really good, really good data you can read,
[00:08:29.300]really good reports you can read,
[00:08:31.200]a prison policy does a ton of good stuff.
[00:08:33.620]I'm gonna share some of those links
[00:08:34.820]because I know there's some of your students.
[00:08:36.720]And so you're thinking, I may be interested in this,
[00:08:38.960]I may wanna try to get an internship in this
[00:08:40.920]or get a job in this, and I want you to have good data
[00:08:43.380]so that you can see that.
[00:08:45.820]So, I started off by sharing with you
[00:08:47.980]how alarmed I am always at the persistent association
[00:08:52.160]with Black bodies, Black corporal forms, with criminality.
[00:08:59.400]And you know, for far too many people,
[00:09:02.700]I would say Blackness alone is suspicious.
[00:09:06.040]And Black mobility and Black presence
[00:09:09.000]is still for some people terrifying.
[00:09:12.820]And this state of affairs, this phenomena
[00:09:16.700]that we're talking about has received a lot of attention.
[00:09:21.320]And we've been talking about this,
[00:09:23.120]I've been working on this stuff since 2003.
[00:09:29.620]That's when I was a law student,
[00:09:32.200]I was working on some of these issues.
[00:09:34.160]I actually started working on a dissertation on this
[00:09:37.000]years before that.
[00:09:39.860]So, this is not new.
[00:09:42.020]Lots of people working in this space,
[00:09:44.000]lots of good publications, great research coming out.
[00:09:47.880]And I think we're still sort of trying to grapple
[00:09:49.760]with the questions of how did we get here?
[00:09:52.120]How did it come to be that the US incarcerates
[00:09:54.780]more of the world's prisoners
[00:09:55.920]than any other democracy on the planet?
[00:09:58.580]How has racism specifically impacted
[00:10:00.600]this corner of American society?
[00:10:02.420]What confluence of factors led us to be here?
[00:10:08.480]And so that's kind of where I want to,
[00:10:11.100]I wanna talk a little bit today.
[00:10:14.160]I wanna talk a bit about this collective origin story
[00:10:18.760]for hyper-incarceration.
[00:10:21.180]And how some of what we've been told
[00:10:23.460]and what we've been telling ourselves
[00:10:24.800]about this origin story,
[00:10:26.080]it really fails to either acknowledge or appreciate
[00:10:28.700]this really long, extra long history
[00:10:31.660]of the over-incarceration and policing
[00:10:34.060]of people of African descent in this land specifically.
[00:10:40.000]And since the earliest encounters
[00:10:41.880]between and among Europeans, native people and Africans,
[00:10:45.840]the bodies of non-Europeans have been imbued
[00:10:49.160]with this suspicion, this fear, the sense of savagery.
[00:10:53.020]And in the ensuing civilization process, right?
[00:10:56.520]The sort of civilizing process,
[00:10:58.000]which is key to settler democracy everywhere
[00:11:01.160]or I'm sorry, to settler colonialism everywhere,
[00:11:03.780]this civilization project is really using law
[00:11:08.620]and its exercise and whatever form law may show up
[00:11:13.000]to do this civilizing work,
[00:11:15.760]civilizing of unwanted peoples.
[00:11:19.720]And in the US, what that looks like
[00:11:21.980]is groups were either defined as within
[00:11:24.620]or outside of the early American body of politic.
[00:11:28.560]Certain groups had power, other groups did not have power.
[00:11:32.240]And one way to demonstrate that power
[00:11:33.920]was by the selective enforcement of the criminal codes
[00:11:37.860]to outlaw certain types of conduct so that,
[00:11:42.260]at least initially so that native people,
[00:11:45.240]indigenous people in the Americas
[00:11:46.760]would be subject to law enforcement by colonial authorities
[00:11:51.440]because they undertook certain behaviors
[00:11:54.980]that were deemed as unacceptable
[00:11:57.600]to the settler colonialism project.
[00:12:01.140]And similarly, once Africans were imported to the new world,
[00:12:04.740]they too were then subject to a set of codes
[00:12:07.320]and a set of legal rules that simply did not apply
[00:12:10.360]to Europeans in the same ways.
[00:12:14.400]So I wanna sort of encourage folks
[00:12:16.180]as we're talking to sort of think about
[00:12:17.720]how law itself works, think about law
[00:12:20.400]as a regime of exclusion, think about law,
[00:12:26.780]sometimes when it works,
[00:12:28.720]as a regime of white supremacy and white supremacist ideals,
[00:12:33.620]and how some of that has remained present in the US
[00:12:38.080]since those early settlements.
[00:12:41.620]The first prisons that we might call prisons
[00:12:44.360]might be unrecognizable to us today.
[00:12:47.720]So these are sort of born in the US
[00:12:49.760]out of this late 18th century transatlantic conversation
[00:12:55.320]over the natural rights of men,
[00:12:57.940]over self-government, over self-representation,
[00:13:01.220]over bodily integrity, right?
[00:13:03.240]That's why you get these early prisons.
[00:13:05.680]You get them because of a concern about bodily integrity.
[00:13:08.620]And you can even think of these early American prisons
[00:13:11.100]as even experimental.
[00:13:14.220]These prisons were experimental
[00:13:15.700]because while prisons had existed, of course,
[00:13:19.360]for, you know, since ancient times, right?
[00:13:21.460]As long as we have had written history,
[00:13:23.060]we have had written histories of prisons,
[00:13:26.080]of physical spaces that are designed
[00:13:27.900]for the punishment of people accused of violating norms,
[00:13:31.220]right, that's what the prison is.
[00:13:33.160]While these had existed for thousands of years,
[00:13:36.740]the idea of the prison as an institution
[00:13:39.040]that could do rehabilitative work,
[00:13:41.260]that could change a person was new.
[00:13:44.420]And so this theory, this theory of the prison
[00:13:46.980]as making a person or making a citizen out of a criminal
[00:13:50.980]called for the strict maintenance of order,
[00:13:54.600]prisoner isolation,
[00:13:56.260]the incorporation of forced labor for inmates,
[00:14:01.120]whereas your earlier prison systems say your,
[00:14:04.560]some of your, the Broadwells of England, for example,
[00:14:07.360]where a Broadwell would have included
[00:14:10.000]corporal punishment as part of its management, right?
[00:14:12.580]With people being beaten,
[00:14:16.240]people having digits cut off
[00:14:18.860]for having certain amount of lashes or ear cropped
[00:14:22.540]or something like that.
[00:14:24.740]In the US, that looks like rehabilitative work,
[00:14:28.240]silent reflection, regimented discipline,
[00:14:32.280]strictly regimented discipline.
[00:14:35.420]In these early prisons, these early facilities,
[00:14:38.380]the initial plans were for prisoners to be housed
[00:14:41.080]in single occupancy spaces, sort of being housed alone.
[00:14:46.040]And just imagine that, right?
[00:14:47.080]The earliest prisons in the US were intended
[00:14:49.240]for prisoners to be housed alone in silence,
[00:14:53.980]only gathering together with other inmates
[00:14:56.400]for the purposes of work and labor,
[00:14:58.760]not for meals, not for anything else, only for labor.
[00:15:03.720]And the first of these is the Walnut Street Jail
[00:15:06.280]in Philadelphia, which opens in 1790.
[00:15:09.120]And Walnut Street is where the theory
[00:15:10.900]sort of first gets put to work.
[00:15:12.960]So this is 1790.
[00:15:14.180]This is on the heels of a revolution of a guerrilla war
[00:15:20.400]that has been waging for more than a decade in the country.
[00:15:24.480]This is what you get.
[00:15:25.860]You get Walnut Street Jail in Philadelphia.
[00:15:31.300]These facilities in theory were intended
[00:15:33.400]to be egalitarian.
[00:15:34.940]There was no sort of preferences or privileges
[00:15:37.160]allotted to one group of inmates
[00:15:39.160]over other groups of inmates.
[00:15:42.080]Unfortunately though, issues of color and issues of status
[00:15:45.320]feature prominently in these early facilities administration
[00:15:48.540]because they really weren't built to account
[00:15:52.520]for the white supremacist project, right?
[00:15:56.140]So I told you how these early jails were built.
[00:15:58.580]They weren't intended to accommodate white supremacy inside,
[00:16:02.900]but then lo and behold, white supremacy will not be denied.
[00:16:05.960]So here, Walnut Street Jail in 1795,
[00:16:08.640]we have described in the records at Walnut Street,
[00:16:13.020]a woman named Ellen who's described as quote,
[00:16:15.540]a Negress unquote, who was sentenced to a year
[00:16:18.380]in the prison and a substantial fine
[00:16:20.920]after having been accused by her mistress
[00:16:24.480]of having stolen a shift and handkerchiefs.
[00:16:27.760]So a shift is addressed.
[00:16:29.080]A shift and handkerchiefs
[00:16:30.340]and having absconded from her service.
[00:16:33.400]The fact that the theft included clothing
[00:16:35.980]that were expected to aid Ellen's escape from service,
[00:16:39.060]she could either wear those clothes
[00:16:40.240]to pretend to be somebody else.
[00:16:43.240]She could either sell those clothes to someone else
[00:16:45.400]and maybe get some coin that she could then use to escape.
[00:16:51.120]Should catch our attention,
[00:16:52.620]primarily because if she had only been accused of theft
[00:16:55.220]or if she had not been a Black woman,
[00:16:57.820]racialized as a Black woman,
[00:16:59.400]her punishment likely would have looked differently.
[00:17:02.460]Perhaps her punishment would look like that of Margaret Field.
[00:17:05.380]Another woman sentenced to the same facility
[00:17:08.120]in the same year for the same crime.
[00:17:11.520]For her troubles, Margaret Field,
[00:17:13.840]who's a woman racialized as white
[00:17:15.720]in the records of Walnut Street jail
[00:17:17.940]was sentenced to only three months imprisonment and no fine.
[00:17:23.780]So what we see in Walnut Street
[00:17:25.760]as in the other Northern facilities that followed it,
[00:17:28.180]Black prisoners were disproportionately represented
[00:17:30.460]among the MA population
[00:17:33.220]and they were treated differently.
[00:17:37.180]In Walnut Street, as in other places,
[00:17:39.740]the majority of the offenses for which Black prisoners
[00:17:43.360]were held were property crimes.
[00:17:46.840]Among inmates from Philadelphia, for example,
[00:17:48.780]88% of them were in the jail for property crimes.
[00:17:52.480]And the prevalence of this,
[00:17:53.960]the prevalence of these property crimes
[00:17:55.820]among these offenses for which Blacks were being sentenced
[00:17:58.280]to Walnut Street jail,
[00:18:00.240]I think sort of demonstrates in a way
[00:18:03.000]how the state is inscribing and re-inscribing
[00:18:06.380]the inferiority of Black claims to property.
[00:18:10.380]So it's easy for the state to support
[00:18:13.400]claims of Black people as property.
[00:18:16.220]That seems to not cause nearly as much consternation
[00:18:19.660]as these early 18th century,
[00:18:22.000]these earlier 18th century claims
[00:18:24.020]of Black people claiming property, right?
[00:18:27.060]This is mine, I own this.
[00:18:29.040]I can be a trader,
[00:18:30.700]I can exchange with others in the marketplace.
[00:18:33.180]That seems to be a bridge too far.
[00:18:37.180]And the facilities that follow Walnut Street's lead,
[00:18:40.380]including the Auburn jail in New York State,
[00:18:44.920]the Virginia Penitentiary in Richmond.
[00:18:47.660]So here's Auburn.
[00:18:50.040]This is Auburn in New York State.
[00:18:52.380]This is the Virginia Penitentiary in Richmond
[00:18:57.120]and also Eastern State,
[00:18:59.200]which is another Philadelphia prison.
[00:19:01.820]Similar trends can also be observed.
[00:19:04.700]In these facilities,
[00:19:06.460]Black prisoners regularly found themselves
[00:19:08.760]sort of caught in the crosshairs of this racial logic
[00:19:12.740]that presumed their fitness only for servitude
[00:19:15.520]and their ill-suitedness for freedom and self-determination.
[00:19:20.460]And this racial logic of Black servitude and inhumanity
[00:19:23.700]really saturated law enforcement.
[00:19:25.340]So even before inmates became inmates,
[00:19:28.960]they had to be accused of something,
[00:19:31.080]they had to be accused of some conduct, some behavior
[00:19:34.240]that ran afoul of the community's norms.
[00:19:38.200]And Black communities understood well that this process,
[00:19:42.100]what we would call policing, right?
[00:19:44.360]The accusing, the identifying of people
[00:19:46.380]with unseemly behavior
[00:19:48.500]and then sort of bringing those people
[00:19:50.160]into the matrix of state law enforcement
[00:19:55.560]or local law enforcement,
[00:19:57.160]Black communities in these areas,
[00:19:59.720]they understood that policing made them vulnerable.
[00:20:03.340]In the North as well as the South,
[00:20:05.440]local law enforcement agents
[00:20:06.840]targeted a Black residence for surveillance.
[00:20:11.680]They targeted them for policing.
[00:20:15.060]And in the South, this surveillance had,
[00:20:17.740]as its chief goal,
[00:20:18.780]the identification and security and return
[00:20:21.940]of people who might be fugitive slaves.
[00:20:25.440]Because runaway slaves threaten property claims
[00:20:27.820]of white slaveholders.
[00:20:30.100]And by extension, runaway slaves threaten slavery itself
[00:20:33.640]as an institution and the slave holding South as a society.
[00:20:38.620]And so what we see from as early as the 1600s,
[00:20:41.540]so now we're like 100 years
[00:20:43.300]before Walnut even comes into existence,
[00:20:45.800]this threat is being identified
[00:20:47.620]by your colonial governments,
[00:20:49.280]colonial governments in the Carolinas,
[00:20:50.900]colonial governments in Virginia
[00:20:52.120]are talking about fugitives,
[00:20:54.980]how fugitives and their sort of absconding,
[00:20:59.320]how this has created a matter of grave public concern.
[00:21:03.800]Because of the importance of reasserting claims
[00:21:07.700]of white mastery over Black runaways,
[00:21:10.680]colonial governments were putting the money
[00:21:12.300]of the British crown behind efforts
[00:21:14.840]to recapture these people.
[00:21:16.220]So you have colonial money, right?
[00:21:19.660]The colonial Fisk is being used in the service of slavery,
[00:21:23.420]in the service of slaveholders,
[00:21:25.140]which continued even into independence
[00:21:27.980]and in the US until 1865 and emancipation.
[00:21:36.060]But even if we aren't talking about the South,
[00:21:37.920]even among free Black communities,
[00:21:39.740]or we're not talking about enslaved people,
[00:21:41.580]even among free Black communities
[00:21:42.860]in the North and the South,
[00:21:44.240]policing, however it was constituted,
[00:21:47.060]posed a serious threat to Black liberty.
[00:21:50.040]And so I like to show folks this example.
[00:21:55.200]So after the passage of the Fugitive Slave Act,
[00:21:57.260]for example, Black communities in the North
[00:21:59.140]were challenging the legitimacy of policing
[00:22:01.760]because the process left Black people,
[00:22:04.720]even free Black people, right, sort of us,
[00:22:07.280]in terms of their legal status,
[00:22:09.200]those who had not been enslaved
[00:22:10.600]were not a fugitive from anything,
[00:22:12.480]it left them at risk of being shipped to the South
[00:22:15.660]and being enslaved for the first time.
[00:22:18.360]This process did not protect their dignity.
[00:22:20.540]This process was intended to get them into the machine
[00:22:22.820]and get them into and put them at risk.
[00:22:26.520]So in Boston, local Black leaders
[00:22:28.120]were posting broad sized cautioning
[00:22:29.960]against open communication with police and law enforcement.
[00:22:33.400]On the grounds that policing was not innocent,
[00:22:36.020]policing was not neutral,
[00:22:38.100]and that such interactions with law enforcement
[00:22:41.460]could be used to,
[00:22:44.140]could result in either incarceration or enslavement.
[00:22:48.160]And so at least in this example,
[00:22:49.700]this is a broadside here from Boston,
[00:22:52.180]where Boston's Black residents are being warned,
[00:22:54.860]this is from 1851, right?
[00:22:56.640]This is right when everybody is talking
[00:22:58.700]about your Fugitive Slave Act,
[00:23:00.380]your Black residents are being warned to shun them,
[00:23:03.460]to shun law enforcement in every possible manner.
[00:23:07.500]This is sort of your no cooperation, no snitching,
[00:23:12.860]none of it, don't communicate with them
[00:23:14.860]because anything you do to communicate with them
[00:23:17.240]will somehow result in someone being put at risk,
[00:23:21.520]someone's liberty being jeopardized
[00:23:23.620]and could very well result in enslavement
[00:23:25.960]or re-enslavement for one of our neighbors.
[00:23:29.820]These sorts of mutual aid efforts
[00:23:31.780]also extended to the treatment of Black prisoners,
[00:23:34.460]which of course differed from the North to the South.
[00:23:36.560]In the South and here, Virginia was the first of these
[00:23:39.220]to have a state penitentiary.
[00:23:42.220]Black prisoners did not have the benefit
[00:23:44.100]of like a meddling press or prison reformers
[00:23:47.840]or Black radicals or even the AME church, right?
[00:23:50.960]They don't have the AME church
[00:23:52.360]that Philadelphia and Boston has.
[00:23:54.920]So your Virginia Black communities
[00:23:57.300]are looking a bit different.
[00:23:58.740]So they don't have the same types of networks
[00:24:01.080]to help bring public attention to the plight of Black people
[00:24:04.400]who are being held either in jails
[00:24:06.540]or in the state penitentiary.
[00:24:10.300]And in addition, when Black people were accused of crimes
[00:24:14.420]in the South, they were also at risk of being sold
[00:24:19.460]or resold and sold even further away from their families.
[00:24:26.400]And so, you know, that specter of enslavement
[00:24:32.340]is a punishment that your incarcerated Black people
[00:24:38.580]in the South can experience, will
[00:24:41.120]experience, do experience,
[00:24:43.140]whereas your incarcerated Black people in the North
[00:24:45.740]are not experiencing in the same way.
[00:24:48.460]And it's worth noting, I think,
[00:24:49.960]that when Thomas Jefferson was first conceiving these plans
[00:24:53.680]for a penitentiary enrichment,
[00:24:55.260]he presumed that the facility would never need to account for
[00:25:00.400]or even have plans for enslaved men and women
[00:25:03.460]because in his mind, the prison was for white men.
[00:25:09.180]They didn't even really imagine
[00:25:10.420]that the prison would have to account for women.
[00:25:12.900]It was intended to be for men,
[00:25:14.680]intended to be for white men, intended to be for free men,
[00:25:19.220]titular free men.
[00:25:21.940]The thinking was that enslaved people
[00:25:24.200]would continue to get their justice,
[00:25:26.780]whatever their justice would be,
[00:25:28.840]either within the home of their enslaver
[00:25:31.800]or that they would continue to be subject
[00:25:34.280]to the same types of inhumane punishment
[00:25:36.740]that Jefferson and others were writing about,
[00:25:39.520]these examples from like Broadwell, right?
[00:25:42.160]In England, where they were talking about,
[00:25:43.780]oh, they're maning people, they're branding people.
[00:25:46.760]The thinking was that those types of punishments,
[00:25:49.180]those corporal punishments that were driving
[00:25:52.180]some of the theorizing around what a penitentiary
[00:25:55.420]in America might look like,
[00:25:56.660]that those could remain available for enslaved people.
[00:26:01.180]Enslaved people could continue to suffer maiming,
[00:26:04.200]branding, amputation, as well as death.
[00:26:07.840]If the law allowed for it,
[00:26:12.260]even while white people accused of the same crimes
[00:26:15.380]would have the benefit or I guess the option
[00:26:18.260]of imprisonment available to them.
[00:26:21.700]So there was this real breakdown
[00:26:23.400]because from the very beginning,
[00:26:24.900]the prison, at least in Virginia,
[00:26:27.420]has enslaved people inside.
[00:26:29.200]The first people to sleep in the prison at Richmond
[00:26:31.900]are enslaved people.
[00:26:33.180]They're actually the men who were accused
[00:26:35.780]of assisting Gabriel who led a slave revolt in 1800.
[00:26:43.100]Gabriel and his comrades were the first people
[00:26:46.940]to be held in the prison in Virginia.
[00:26:50.220]They just have no idea what this prison will be used for
[00:26:54.140]and of course, it ends up being used in these ways.
[00:27:00.040]So quickly, the reason I talk about this
[00:27:02.220]is because I think it's important
[00:27:04.260]when we're talking about like carceral histories
[00:27:08.240]and carceral logics to really understand
[00:27:10.880]some of this earlier history.
[00:27:12.860]Some of the stuff I'm talking about here is from the 1850s.
[00:27:15.300]Some of this stuff is from the 1790s.
[00:27:17.520]We also have examples from even earlier, right?
[00:27:19.820]So as early as the 1690s in Virginia, at least,
[00:27:24.180]which is what I know the most about,
[00:27:26.080]there was a proclamation that was issued
[00:27:28.700]that mandated that all runaway Negroes
[00:27:31.900]whose owners can't be discovered, this is a quote,
[00:27:34.760]all runaway Negroes whose owners can't be discovered,
[00:27:37.560]that all of those people be sent to the sheriff
[00:27:40.080]of James City for safekeeping.
[00:27:43.400]This is as early as 1691.
[00:27:45.920]So as early as then, there is this move
[00:27:49.320]to having people detained together,
[00:27:52.580]having people housed together
[00:27:54.140]under the custody of law enforcement agents
[00:27:57.320]for the purpose of holding them
[00:27:59.380]and returning them to enslavement.
[00:28:03.520]A 1705 law in Virginia similarly required constables
[00:28:07.400]to administer lashes, to apprehended runaways.
[00:28:10.500]So again, you have law enforcement agent
[00:28:12.500]who has been deputized by law
[00:28:14.820]to administer physical corporal punishment
[00:28:17.980]to people who are brought to him
[00:28:21.200]and who someone claims is a runaway.
[00:28:25.380]He's not required to return them.
[00:28:27.780]He's required to assault them, that's important.
[00:28:31.820]And so once you have these jails and prisons
[00:28:33.820]that are firmly ensconced in the service and protection
[00:28:36.920]of slavery and this ideology of racial hierarchy,
[00:28:41.480]I think this is where the race to incarcerate begins.
[00:28:44.240]So you really have this carceral project,
[00:28:48.460]at least this carceral project
[00:28:49.960]around people of African descent,
[00:28:52.860]beginning in the colonial era.
[00:28:55.160]This is not some sort of post-bellum
[00:28:57.860]reconstruction era project.
[00:28:59.980]This is a project that I think was long underway,
[00:29:02.200]even by the time of the Revolutionary War.
[00:29:06.140]And so I wanna show some examples
[00:29:10.060]because I think it's helpful.
[00:29:11.700]This is actually a photo taken from Delaware,
[00:29:15.780]which people sometimes don't expect.
[00:29:18.720]Delaware was a slave state, folks.
[00:29:21.900]Delaware had slaves.
[00:29:23.500]This is taken from Delaware.
[00:29:25.560]Obviously, this is not in the era of slavery.
[00:29:27.880]But the reason I share this,
[00:29:29.420]one is because it's from Delaware and I sort of,
[00:29:32.180]I think it's important to represent
[00:29:34.320]all of our history.
[00:29:36.320]But some punishments, such as the use of pillories or stock.
[00:29:39.920]So this is a stock, right?
[00:29:41.160]It's called the stocks where you're sort of,
[00:29:43.420]it can look different.
[00:29:44.440]Sometimes the prisoner is standing
[00:29:46.020]with the head and the hands secured by wood.
[00:29:49.400]Sometimes the prisoner is in a kneeling
[00:29:51.220]or half kneeling position,
[00:29:53.140]some other kind of uncomfortable position, right?
[00:29:55.700]Because it's not just the sort of standing still,
[00:29:58.300]that's the punishment.
[00:29:59.600]It's also intended to be uncomfortable on the limbs.
[00:30:02.880]And so that's sort of, think of this as a form of torture,
[00:30:05.280]but we'll get to that later.
[00:30:08.100]Some of these punishments were available to all prisoners,
[00:30:10.460]irrespective of race.
[00:30:12.140]So you have white people in the pillories,
[00:30:14.900]you have white people being put in the stocks,
[00:30:17.240]you have white people being subjected to lashings.
[00:30:20.700]But in practice, prisons have always been,
[00:30:23.720]at least in this country, racialized institutions.
[00:30:28.240]In Delaware, for example, this is, again,
[00:30:30.640]this is a Delaware photo.
[00:30:32.460]Delaware kept the pillory as a punishment device
[00:30:35.540]until the 1970s.
[00:30:37.680]So I was alive when Delaware dispensed
[00:30:41.260]with the use of the pillory as a form of punishment
[00:30:44.660]in the 1970s in this country.
[00:30:48.700]Okay, so we're gonna time travel a little bit.
[00:30:51.200]I get in my tardis and let's time travel a little bit.
[00:30:54.320]So when we're sort of thinking about enslaved people
[00:30:58.060]or people accused of being fugitives
[00:31:00.240]who could be put into jails,
[00:31:02.660]and this is sort of in the colonial and antebellum areas,
[00:31:05.000]errors again, that could result in them being sold
[00:31:08.600]as a slave.
[00:31:09.740]It could also result in them being leased out to work,
[00:31:13.340]either in domestic situations, domestic homes,
[00:31:16.360]or to work on farms, or to work on industrial interests,
[00:31:20.260]to work in minings, to work on railroad,
[00:31:23.300]to work in a mill, a mill factory, all of this.
[00:31:28.600]So throughout the slave holding South,
[00:31:31.100]state laws permitted the sale of jailed inmates, labor.
[00:31:37.160]In practice though, the only inmates that were subject
[00:31:40.400]to being sold or leased out of prison
[00:31:43.340]were people of African descent.
[00:31:46.800]So you don't have white convict lessees,
[00:31:50.460]or yeah, lessees in the antebellum South.
[00:31:54.620]I see no evidence of this.
[00:31:56.220]I only see evidence of Black convict lessees.
[00:32:00.120]In Baltimore's jail, for example,
[00:32:02.560]state law permitted white inmates to work,
[00:32:04.780]quote, with their own consent, unquote,
[00:32:07.560]while Black or mixed race inmates, quote,
[00:32:10.980]had no option but to work if sold ordered, unquote.
[00:32:15.300]And I wanted to talk about inmate leasing
[00:32:17.720]and sort of how this worked
[00:32:19.140]and sort of how this was conceived
[00:32:21.160]because again, back to California.
[00:32:24.320]So on election day,
[00:32:25.820]California voters had an opportunity to vote,
[00:32:29.620]to bar involuntary servitude
[00:32:34.180]for imprisoned people in California facilities
[00:32:39.180]so that those people would not be forced to work.
[00:32:42.020]Right now, people who do not work,
[00:32:45.160]incarcerated people who do not take a job assignment
[00:32:47.520]or a work assignment can be subject to punishment.
[00:32:51.440]They can lose good time credits.
[00:32:53.500]They can be subject to all sorts of discipline
[00:32:55.840]if they refuse to take on a work assignment.
[00:32:58.740]So California voters had an opportunity
[00:33:00.520]to dispense with this
[00:33:03.300]and to outlaw basically involuntary servitude
[00:33:07.240]or the sort of forcing of people into work
[00:33:09.960]just because they are incarcerated.
[00:33:12.360]And again, California voters will surprise you.
[00:33:15.500]They voted not to do it.
[00:33:17.560]The voters, this did not pass in California,
[00:33:20.320]even though it had passed, I think in Louisiana,
[00:33:23.620]two years ago, I think.
[00:33:25.580]So Louisiana has it, but California does not.
[00:33:29.380]Again, sort of these stereotypes about voters
[00:33:32.580]and about residents really, when it comes to prisons,
[00:33:36.280]things get a little wonky.
[00:33:37.700]And those stereotypes and those sort of presumptions
[00:33:40.140]about how people will vote or what types of policies
[00:33:43.480]people will support really, really don't work as well.
[00:33:48.620]Here's an example of children on a chain gang.
[00:33:54.840]The chain gangs are,
[00:33:57.660]there have been chain gangs used in the US
[00:34:00.660]up to the 20th, 21st century, right?
[00:34:03.460]In 2000s, we see chain gangs.
[00:34:06.440]Sheriff Arpaio, so this is a former sheriff
[00:34:09.160]in Maricopa County and where Phoenix is located,
[00:34:12.680]brought back the chain gang for people
[00:34:14.980]who were incarcerated in that country,
[00:34:16.960]in that county's jail.
[00:34:18.500]So people in Phoenix who went to jail,
[00:34:22.160]Joe Arpaio had brought back the chain gang.
[00:34:25.100]I might have a photo of that somewhere
[00:34:26.500]and had them dressing in this like bright pink
[00:34:29.700]and sort of with chain gang on it
[00:34:32.180]so that everybody knows that that's what's happening here.
[00:34:35.300]I mean, I hope that you can sort of understand
[00:34:37.300]the sort of the dehumanization that's happening here
[00:34:42.320]and the dehumanization that is central
[00:34:45.360]to some of this policy.
[00:34:47.960]These are children.
[00:34:49.160]You can see these are children from their faces
[00:34:50.960]and some of them look very, very young.
[00:34:53.420]And so when we see images like this,
[00:34:55.000]this is troubling, this is troubling.
[00:34:56.920]This is from, I think this is from Georgia,
[00:35:00.320]but I'm not sure I'll have to look up the provenance
[00:35:02.420]for this image.
[00:35:06.330]And so one of the things,
[00:35:07.910]wait, let me back up so I can get it ready.
[00:35:09.830]One of the things that I like to share with folks
[00:35:13.090]is when we are talking about sort of carceral systems
[00:35:16.430]and carceral logics and how people have been living
[00:35:20.310]with these systems and also how people have been fighting
[00:35:24.030]against these systems,
[00:35:25.790]systems that would put your child on a chain gang
[00:35:29.370]and take them away from you.
[00:35:31.690]I also like to talk about resistance
[00:35:35.290]and particularly the types of artistic production
[00:35:39.470]that come out of the earliest 20th century
[00:35:43.070]and also in the late 19th century,
[00:35:45.950]where you see Black people, Black artists making music
[00:35:51.030]about being in prisons and making blue songs
[00:35:56.050]about chain gangs.
[00:35:59.030]And so I have one example of this
[00:36:01.710]that I'd like to share.
[00:36:04.390]You know, I worry I won't get this right.
[00:36:06.490]So I've got to queue it up and play it for you.
[00:36:15.660]This is...
[00:36:30.530]Did you share the audio?
[00:36:33.010]I'm sharing it now.
[00:36:34.270]Can you not hear it?
[00:36:35.030]Oh, okay.
[00:36:35.390]I thought you had played already.
[00:36:36.570]Is that my story?
[00:36:44.610]Are you able to hear it?
[00:36:48.120]No, that's what I was thinking.
[00:36:49.660]Okay.
[00:36:52.250]Yeah, we're not able to hear it.
[00:36:56.280]Okay, I'll make it,
[00:37:04.290]take my headphones off to make it work.
[00:37:07.730]So I will try this differently.
[00:37:11.370]Okay.
[00:37:21.230]Can you hear that?
[00:37:28.260]Something playing, but we don't hear it too clearly.
[00:37:45.800]Instead of sharing the audio,
[00:37:47.560]because it doesn't want to play,
[00:37:49.520]I'm just going to share the lyrics
[00:37:50.800]because I have the lyrics here.
[00:37:57.100]So this is a song by Ma Rainey.
[00:37:59.600]Ma Rainey is a famed blues singer
[00:38:04.160]and the song is chain gang blues.
[00:38:07.860]And Ma Rainey is singing about her own,
[00:38:11.500]not her own, like her history.
[00:38:13.460]That's not what she's singing about.
[00:38:14.440]She's singing about a protagonist
[00:38:15.840]who has been sent on the chain gang
[00:38:18.340]and who has been sent on the chain gang
[00:38:21.620]for reasons that she thinks are unjust.
[00:38:24.820]So the lyrics here are,
[00:38:27.100]and I can read it quickly
[00:38:27.920]because many of the lines are repeated.
[00:38:30.380]The judge found me guilty.
[00:38:32.420]The clerk, he wrote it down.
[00:38:34.540]The judge found me guilty.
[00:38:36.720]The clerk, he wrote it down.
[00:38:38.960]Just a port of trouble.
[00:38:40.220]I know I'm county road bound.
[00:38:42.500]That language about being county road bound
[00:38:45.300]means I am bound for the chain gang.
[00:38:48.080]That's what she's talking about.
[00:38:50.500]Many days of sorrow, many nights of wall
[00:38:52.020]and a ball and chain everywhere I go.
[00:38:55.720]Chains on my feet, padlock on my hand.
[00:38:59.060]It's all on account of stealing a woman's mad.
[00:39:03.560]It was early this morning that I had my trial,
[00:39:07.100]90 days on the county road
[00:39:09.200]and judge didn't even smile.
[00:39:13.040]So the song has a lot of,
[00:39:16.860]I mean, it's Ma Rainey
[00:39:18.660]and so she's sort of pulling out these words
[00:39:20.980]and stretching these words
[00:39:22.140]and it's really a delay.
[00:39:23.400]I'll share a link to it in the chat.
[00:39:25.360]It's on Apple Music.
[00:39:26.280]That's what I was trying to play.
[00:39:27.620]I blame Apple for that.
[00:39:30.200]But she's really singing.
[00:39:32.300]Like now I have been accused of something.
[00:39:34.760]It's not even a real thing.
[00:39:36.380]And now I have to go on the chain gang
[00:39:38.720]and this is what that means.
[00:39:40.760]I have chains on my feet and padlocks on my hands.
[00:39:46.510]So I like to show this image to folks.
[00:39:49.330]This is a 20th century image,
[00:39:52.570]but I like to show it
[00:39:53.910]because when we're talking about that artistic expression
[00:39:59.150]that's related to incarceration,
[00:40:01.490]experiences of incarceration,
[00:40:03.030]it's related to feeling like the criminal justice system
[00:40:05.970]is not a justice system at all.
[00:40:08.090]Because that's what Ma Rainey is saying
[00:40:09.530]about why am I going to the chain gang
[00:40:11.050]for taking somebody's man?
[00:40:12.670]That should not be a crime and yet here I am.
[00:40:16.010]I like to sort of share images
[00:40:18.450]that remind us collectively
[00:40:21.210]of what it needs to have our hands bound
[00:40:24.370]and our bodies bound in this way.
[00:40:28.170]This is a child.
[00:40:30.290]And what that looks like,
[00:40:31.170]what that might feel like
[00:40:32.590]sort of to imagine your hands are unable to move.
[00:40:37.030]Your legs are unable to move.
[00:40:39.850]And there is hands bound, feet bound,
[00:40:43.670]unable to breathe freely.
[00:40:47.270]And I'd like to conclude by suggesting that
[00:40:51.150]sort of at least for people of African descent
[00:40:55.150]in this country,
[00:40:56.550]this is where prisons have left us.
[00:41:00.270]They've left us to sort of imagine ourselves very easily
[00:41:03.710]as being caught up into this machine
[00:41:06.250]and being unable to breathe,
[00:41:08.690]hands bound, feet bound, unable to breathe
[00:41:11.630]because of what prisons do.
[00:41:18.550]I also wanted to check
[00:41:19.950]because I understand that the group has watched 13th.
[00:41:24.390]And I think that this is sort of one of the things
[00:41:27.470]that I know 13th is really good.
[00:41:33.290]But I think it's important,
[00:41:34.590]particularly when we sort of keep in mind
[00:41:37.150]what actually happens in prisons.
[00:41:41.090]This is a story that 13th isn't really able to tell
[00:41:44.610]because it's a set film.
[00:41:48.850]People can be forced to work,
[00:41:51.150]even if they are in jail, not convicted of anything.
[00:41:55.830]People can get new sanctions added to them,
[00:41:58.850]new sort of civil sanctions added to their custodial
[00:42:02.750]sentences, even if those sanctions were not in effect
[00:42:05.890]at the time of the conviction.
[00:42:09.670]Depending on what people are convicted of,
[00:42:12.030]they can be subject to lifelong monitoring,
[00:42:14.590]they can be subject to probation, lifetime probation.
[00:42:18.410]These are sort of tools to keep people
[00:42:20.970]within the grasp of the system.
[00:42:23.770]And I think that this sort of leads to over criminalization,
[00:42:27.530]over incarceration, and it leads to people feeling
[00:42:31.950]as if this is not their democracy,
[00:42:34.630]as if they are estranged from the law,
[00:42:37.790]estranged from this society.
[00:42:40.130]And it may even further,
[00:42:42.890]but this dehumanization may even further push people
[00:42:46.290]into criminal activity, antisocial activity.
[00:42:49.510]And this is something I think to be worried about.
[00:42:53.990]And I think, overall, this sort of prehistory
[00:42:57.210]of prisons and policing, which I've been sharing,
[00:43:00.390]have left an indelible trace on what we see
[00:43:03.590]as contemporary acts of state violence
[00:43:05.590]against poor and racialized communities.
[00:43:09.370]And as we are looking ahead to political regime change
[00:43:14.110]and sort of thinking about what this will mean
[00:43:16.250]in the criminal justice space, in the space of policing,
[00:43:19.870]what this will mean for immigrant detention,
[00:43:23.130]what this will mean for the entire many-headed Hydra, right?
[00:43:27.950]As we're thinking about this and going forward,
[00:43:29.850]I think it's important to sort of keep our history,
[00:43:33.030]this history, the shared history in mind.
[00:43:36.330]So I'm super excited for our chat today
[00:43:39.490]and really looking forward to your question.
[00:43:41.950]I know you have a lot of questions.
[00:43:43.210]I see them.
[00:43:43.990]I couldn't see them before, but I see them now.
[00:43:46.710]So I'm excited and love to hear what folks think.
[00:43:51.210]Thank you so much, Dr. Henderson.
[00:43:53.250]That was a great overview of this long history.
[00:43:58.150]I want to dive right in
[00:43:59.910]because we do have a student question
[00:44:01.350]and it picks up on, I think, a thread that you just ended with
[00:44:05.910]in referencing 13th.
[00:44:08.730]Do you feel that 13th in kind of presenting
[00:44:14.810]the conditions in prison and the carceral state as it does,
[00:44:17.910]is a proper representation of the conditions
[00:44:22.750]in which people are confined
[00:44:23.990]or do you think there's part of the story
[00:44:25.770]that it doesn't tell?
[00:44:27.510]Well, I think 13th doesn't tell this prehistory
[00:44:30.170]and 13th would lead one to believe
[00:44:33.690]and I've shown 13th to my students.
[00:44:36.230]When it came out, I was eager.
[00:44:38.130]I wanted my students to see it.
[00:44:40.510]So I'm a fan, but I think that what they can't really do well
[00:44:45.470]in this film is grapple with what it looked like
[00:44:49.390]to have high numbers of people racialized as Black
[00:44:56.590]in prisons before emancipation, right?
[00:45:00.590]I've talked to you about Auburn, women in Walnut Street,
[00:45:05.790]Gabriel Prosser and his compatriots
[00:45:08.190]who led the Gabriel's Rebellion of 1800 in Richmond.
[00:45:11.710]These are all people who were incarcerated
[00:45:13.390]before emancipation.
[00:45:15.650]So it's not emancipation that I think that triggers something
[00:45:18.890]and now we're on this indelible road.
[00:45:21.730]I really think that this is a history
[00:45:23.410]that stretches far back.
[00:45:25.330]And emancipation is just one kind of,
[00:45:30.150]it's a cleave, right?
[00:45:32.170]It's an important moment,
[00:45:34.630]but I don't see the 13th Amendment as being the reason
[00:45:39.190]that somehow we have all of these people in prison.
[00:45:42.790]These are, the groundwork is being laid 150 years
[00:45:47.330]before that and that's what I see.
[00:45:50.490]The sort of criminalization of Black bodies moving freely,
[00:45:54.330]that's what I see as the root of our problem.
[00:45:57.890]And once we are 300 years in at this point,
[00:46:02.010]I'm thinking about that example from the 1690s in Virginia,
[00:46:04.950]now we are 330 years in,
[00:46:07.210]you're 330 years in to legal logistics
[00:46:10.490]that tell you that certain types of bodies
[00:46:13.770]should be rounded up because certain types of bodies
[00:46:17.410]are per se suspicious.
[00:46:20.110]That is hard to unlearn.
[00:46:21.650]And I don't think 13th can get into that.
[00:46:24.650]That's not its project.
[00:46:26.790]Yeah, thank you for that.
[00:46:28.910]And again, please, if there are any questions
[00:46:30.490]from our attendees, drop them in the chat.
[00:46:32.830]But I have a follow-up question to that.
[00:46:36.050]You know, you compellingly spoke of this 300 plus year
[00:46:39.550]history of legal logics and the role of the law
[00:46:41.870]as a regime of exclusion,
[00:46:43.850]the active role that the law plays
[00:46:46.150]in constructing this carceral project.
[00:46:48.490]Do you see a role for the law in the reverse
[00:46:51.510]in dismantling the carceral project
[00:46:54.750]or do you think it's an impediment to doing that?
[00:47:01.360]I think two things can be true.
[00:47:03.220]I think law has a place in thinking differently
[00:47:08.680]about how we tackle antisocial behavior that scares us.
[00:47:18.000]The law has a place.
[00:47:19.300]And I think law can be used to good ends.
[00:47:24.200]I worry though, that if we only can imagine the worst,
[00:47:29.780]if we only can imagine, you know, the hyper surveillance,
[00:47:34.040]if we only can imagine these extensive regimes,
[00:47:38.220]or I was just reading something that the US is,
[00:47:42.900]I mean, this just came out like a week ago.
[00:47:44.700]The US is getting rid of this program
[00:47:48.480]by which border agents and airport security
[00:47:51.700]would stop travelers who did nothing wrong
[00:47:55.900]and search those travelers.
[00:47:58.020]And if those travelers had large amounts of cash on them,
[00:48:01.100]the border patrol and airport security would take the cash.
[00:48:05.700]Sort of reading, literally reading about this
[00:48:08.380]a few days ago and some examples
[00:48:10.160]of Black and Latino travelers who were not accused
[00:48:15.260]of crimes, but because of civil forfeiture,
[00:48:18.440]were having these large sums of money, $10,000, $20,000,
[00:48:22.060]seized from their person while they are at the airport.
[00:48:25.580]And now it's in civil forfeiture
[00:48:28.220]and it becomes seriously difficult for their families
[00:48:33.500]to get that money back.
[00:48:35.140]Like there's a place, we can get rid of that.
[00:48:38.200]We can sort of think differently
[00:48:39.280]about how we want to do law enforcement at airports
[00:48:42.700]and in other shared public places.
[00:48:45.300]But I worry though, that we not put too much,
[00:48:49.940]that we not put too much power in law enforcement.
[00:48:56.620]This is my worry.
[00:48:57.940]As long as law enforcement is human,
[00:49:00.000]law enforcement will have biases.
[00:49:02.080]And the move to the robots is not helping us here
[00:49:05.080]because the robots are being programmed
[00:49:07.320]and the code is garbage and garbage in, garbage out.
[00:49:10.740]So, the move to AI is not helping us here.
[00:49:15.800]I think we have to really think
[00:49:18.440]about what kind of society we wanna have
[00:49:21.060]and how we can build community systems,
[00:49:25.300]how we can build community supports,
[00:49:27.120]how we can help people through mental health crises,
[00:49:31.580]how we can provide family support,
[00:49:35.000]how we can help with people with parenting,
[00:49:37.200]how we can do some of the things
[00:49:38.960]that are leading people to the types of behavior
[00:49:42.740]that we all want to see less of.
[00:49:46.840]Yeah, kind of a fundamental re-imagining
[00:49:50.000]of social structures
[00:49:50.980]and our relationships with each other.
[00:49:53.720]Okay, so I've got a couple.
[00:49:54.900]I'm sorry, Danielle, I was just gonna add.
[00:49:57.180]And maybe that is a little,
[00:49:59.040]maybe there's a little bit of like Pollyanna in that.
[00:50:02.680]Maybe we can't imagine that just yet
[00:50:04.520]because of our shared collective trauma.
[00:50:06.560]But I wanna encourage us to really think.
[00:50:09.760]Let's imagine for a second, what if we dream together?
[00:50:13.040]What could we build if we dream?
[00:50:15.980]What could it look like?
[00:50:17.980]Yeah, it's a great invitation for everyone on the call.
[00:50:24.320]So, we've got just a little limited time.
[00:50:26.840]I think we're running out of time,
[00:50:28.160]but I've got a question here.
[00:50:30.920]So, in regards to 13th,
[00:50:33.760]they mentioned how prisons are very integrated
[00:50:36.260]in our society because of the amount of investors
[00:50:39.280]and the privatization, I think, of prisons,
[00:50:42.580]whether it's purely private prisons
[00:50:45.020]or the privatization of prison services,
[00:50:47.460]phones, food services.
[00:50:50.800]How do we, this is the question then,
[00:50:52.540]how do we decrease or how do we shrink
[00:50:55.620]that part of the Carceral Project?
[00:50:59.560]Could, and then I think this is maybe a related question,
[00:51:04.180]perhaps, could law enforcement,
[00:51:07.420]could the racialized aspects of law enforcement
[00:51:09.840]and policing be eliminated or reduced
[00:51:12.620]if there was better training?
[00:51:14.640]So, I think there's two parts there,
[00:51:15.880]talking about the privatization of the Carceral Project
[00:51:18.240]and then also training.
[00:51:19.620]What's the role of training for law enforcement here?
[00:51:23.000]It's a great question.
[00:51:25.060]I'm gonna share, I promise to share some data with you
[00:51:30.000]and I'm gonna share, this is from Prison Policy,
[00:51:32.840]feel free to look at this later.
[00:51:35.080]The reality is that private prisons aren't what's driving us.
[00:51:40.180]It's not private prisons.
[00:51:41.520]We would be led to think that it's private prisons,
[00:51:44.380]but private prisons aren't the issue here.
[00:51:49.200]The one could argue that the issue here is violent crime.
[00:51:57.400]And that's what is so hard for folks
[00:51:59.940]who want to see less of this regime,
[00:52:03.240]less of these investments.
[00:52:05.380]It's hard for us to square our commitment to public safety
[00:52:10.100]with a commitment to reducing some of these institutions.
[00:52:17.540]So, if we're talking about folks with,
[00:52:24.280]who are in state facilities,
[00:52:26.560]so state local jails or state prisons,
[00:52:29.360]most of them are there for violent crimes,
[00:52:32.060]not for drug offenses.
[00:52:33.140]This is another thing that I think 13th kind of maybe
[00:52:36.260]could use some updating,
[00:52:38.580]because the data just doesn't bear out
[00:52:42.220]what the central thesis of the film
[00:52:45.880]and of I think the new Jim Crow.
[00:52:47.780]And we can update as we learn more.
[00:52:49.700]That's the great thing about people investing
[00:52:52.100]in this research.
[00:52:53.240]The more we learn them,
[00:52:54.420]the better we can do as we move forward.
[00:52:57.060]So, how do we slowly decrease the,
[00:53:00.480]every time you cut off a head of the Hydra,
[00:53:02.520]the head grows back, right?
[00:53:03.680]That's how the myth works.
[00:53:05.220]So, how do we slowly decrease?
[00:53:07.680]I think one way is to invest in our social safety nets.
[00:53:15.820]The countries that have invested heavily
[00:53:18.040]in their social safety nets
[00:53:19.500]don't have the prison systems that we have.
[00:53:22.600]They don't have the prison numbers that we have.
[00:53:25.940]They don't even have the prison percentages,
[00:53:27.940]like percent of the population that we have.
[00:53:30.900]So, maybe there is something to be learned here
[00:53:33.900]from investing in your social safety net,
[00:53:36.240]investing in your people and helping those people
[00:53:38.760]to imagine better outcomes for themselves.
[00:53:42.980]That's just one suggestion.
[00:53:46.720]In terms of training and whether training,
[00:53:50.440]if it was more intense and more extensive,
[00:53:52.380]whether some of this could be reduced,
[00:53:54.140]I don't know if training reduces racism,
[00:53:57.380]but what I think training can do is sort of,
[00:54:03.520]I don't know what the word is,
[00:54:05.760]but it can socialize, so it can make popularize
[00:54:12.640]or socialize, checking one's own biases
[00:54:16.020]and thinking through one's own biases before one acts.
[00:54:20.020]Now, that's very challenging
[00:54:21.440]if one is a law enforcement agent
[00:54:23.240]because you don't always have time
[00:54:24.760]to think through a lot of possibilities.
[00:54:27.780]But I think training can be good for that.
[00:54:31.060]I think the other thing that would be good
[00:54:32.840]and can be good is data and record collection.
[00:54:38.200]What kind of record-keeping do we keep?
[00:54:41.020]And what do we invest in in terms of data and information?
[00:54:45.180]What do people know about the system?
[00:54:47.080]What do you know about the system?
[00:54:48.260]For those of you that are in Nebraska,
[00:54:50.060]what do you know about where you live?
[00:54:52.820]Where do you get that data from?
[00:54:55.080]I think investing in that and making that more transparent
[00:54:57.600]could help because there, again, there are these beliefs
[00:55:01.160]that the people who are bad look a certain way
[00:55:06.260]are from certain places and live in certain communities.
[00:55:08.860]And maybe if we had better access to data
[00:55:11.920]about who actually is responsible for things
[00:55:15.460]that could help to dispel some of those myths.
[00:55:22.040]Yeah, and then we've got a couple of more questions
[00:55:25.160]that pick up on that thread of policing as well.
[00:55:28.140]One, do you think that the kind of expansion
[00:55:31.700]of the carceral state, the increase in using prisons
[00:55:34.580]for more than just white men, free white men,
[00:55:39.140]do you think police violence is linked to that
[00:55:42.100]growing carceral state?
[00:55:45.020]And what do you see the role of, for example,
[00:55:48.100]an attendee brought up Terry versus Ohio, so Terry stops.
[00:55:51.100]What do you think the constitutional regulation
[00:55:53.120]of policing has to say here too?
[00:55:55.880]I'm gonna go in a totally different direction
[00:55:57.200]on Terry stops, but before I do, I want to say
[00:56:01.120]that there are, well, let me go to Terry,
[00:56:07.360]because I'm too excited.
[00:56:08.160]I'm so glad you asked about Terry, Nathan.
[00:56:10.140]I don't know why you're thinking about Terry,
[00:56:12.360]but here we go.
[00:56:14.260]What you never learn when you learn
[00:56:15.920]about Terry versus Ohio is that Terry versus Ohio
[00:56:19.240]is really a case about white people
[00:56:24.520]in places that they should not be.
[00:56:28.900]The reason that the officer offered
[00:56:30.860]for making the stop in Terry was that he saw a Black man
[00:56:36.480]and a white man with Black men,
[00:56:40.240]and he thought it was suspicious.
[00:56:42.440]So I want you to hone in on that part of Terry,
[00:56:45.700]that there is this racial incongruity
[00:56:48.740]that somehow led to this must be suspicious.
[00:56:53.440]I see this as straight out of the playbook from 1690.
[00:56:58.960]These bodies should not be together.
[00:57:00.960]There is something suspicious
[00:57:02.120]about these people being together,
[00:57:04.460]because that's the basis for it.
[00:57:06.380]That's the basis for the stop.
[00:57:08.060]The expressed admitted basis for the stop
[00:57:11.660]is that these people should not be together.
[00:57:13.840]And so I see Terry versus Ohio
[00:57:16.320]as really being about Black bodies and white bodies
[00:57:22.460]and an attempt to keep us separate,
[00:57:25.480]but that's not where you want it to go.
[00:57:28.200]So in terms of stopping frisk,
[00:57:30.800]I live in the city of New York.
[00:57:33.360]Our mayor is a former police officer.
[00:57:35.660]He thinks we need more stopping frisk.
[00:57:37.620]I don't really know what to say about stopping frisk.
[00:57:40.420]Something like 90% of everybody being stopped
[00:57:44.280]and frisked in New York was either Black or Latino.
[00:57:47.060]Something like maybe 92% every year they were doing it.
[00:57:51.620]More than 90% was Black or Latino.
[00:57:54.420]And all the research found that for all of those stops
[00:57:57.920]of Blacks and Latinos in the city of New York,
[00:58:00.480]they were not more likely to find drugs, weapons, guns,
[00:58:06.500]that they were more likely to find drugs, weapons, guns
[00:58:10.140]on the 10% of white people who were stopped.
[00:58:14.160]It doesn't matter.
[00:58:15.980]It doesn't matter.
[00:58:18.060]The mayor is committed to it.
[00:58:20.160]This is the racial logic.
[00:58:23.980]This is not a public safety logic.
[00:58:27.600]And you're so right, Professor Anderson,
[00:58:29.860]as you know, I'm also from New York and I was stopped.
[00:58:32.280]I was not frisked.
[00:58:33.060]I think that didn't frisk me because I'm a woman,
[00:58:36.800]but for random, it just made no sense.
[00:58:40.120]It makes no sense.
[00:58:41.200]I was driving my ex boyfriend's car
[00:58:43.620]that I should not have been driving, apparently.
[00:58:46.020]This is it, this is it.
[00:58:47.860]And the only thing that it does is it makes
[00:58:51.340]white residents feel better.
[00:58:55.980]It instantiates white supremacy.
[00:58:58.140]That's all it does because you know it won't happen to you.
[00:59:01.180]And as long as you feel categorically
[00:59:03.440]that something won't happen to you,
[00:59:04.900]you feel better about your status.
[00:59:08.060]That's the only thing it serves.
[00:59:12.760]I know we have one minute.
[00:59:13.760]I know people have been trying.
[00:59:14.080]I know, I was just gonna say,
[00:59:15.300]I have the unfortunate role also of keeping time
[00:59:17.700]and I had a final question for you,
[00:59:20.040]but I'm just gonna turn it over to Anne
[00:59:21.860]because I know we're losing folks
[00:59:23.260]running off to their next class,
[00:59:25.000]but so I'll turn it over to Anne to wrap up.
[00:59:27.060]Thank you so much.
[00:59:28.060]Thank you so much, Professor.
[00:59:29.400]Thank you, Professor Jones.
[00:59:31.480]Thank you.
[00:59:31.800]Thank you.
[00:59:32.360]Well, Tom is here, thank you.
[00:59:33.840]And thank you, Anne Gregory,
[00:59:34.800]for getting it all together and for sending me the link.
[00:59:37.280]I was like, oh, Anne has it all taken care of.
[00:59:40.120]And thank you for hanging out with us
[00:59:41.960]because I know you are crossing the pond right now.
[00:59:44.080]I know.
[00:59:44.920]So thank you all.
[00:59:47.120]This was fantastic.
[00:59:48.700]And I'd be happy to talk more and to come back.
[00:59:52.200]So thank you.
[00:59:52.820]Thank you, Nebraska.
[00:59:54.260]Thank you.
[00:59:55.560]Have a wonderful day, everyone.
[00:59:58.200]You too.
[00:59:59.260]Thank you, Dr. Henderson
[01:00:00.260]and Professor Jefferis for this conversation.
[01:00:02.840]It's been an honor to have you here.
[01:00:04.620]We're so grateful for your time
[01:00:06.460]and appreciate the way that your projects
[01:00:08.260]are laying the foundation for the questions
[01:00:10.220]that we're asking at the U.S. Law and Race Initiative.
[01:00:13.460]I'd also like to thank our audience for watching,
[01:00:16.060]for sending in the questions
[01:00:17.160]and to the U.S. Law and Race team for your support.
[01:00:20.500]You can learn more about the US Law and Race Initiative
[01:00:22.820]at uslawandrace.unl.edu.
[01:00:25.940]Additional information about our event series
[01:00:28.060]as well as our YouTube videos of our past events
[01:00:30.900]are posted at events.unl.edu/uslawandrace.

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The Carceral State: Legal Histories of American Unfreedom

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