AFSC: Corrupting Justice

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A Primer for LGBT Communities on Racism, Violence, Human Degradation & the Prison Industrial Complex
  AN AFSC LGBT JUSTICE VISIONS PUBLICATION  1 Racism, White Supremacy& Incarceration To look deeply into any aspect of the U.S.criminal justice system is to confront themost chilling contemporary manifestationof racism and white supremacy imaginable.The policies that have produced mass incar-ceration are tearing communities of colorapart, fracturing families, and sending genera- tions of youth into the social, economic, and edu-cational pipelines that lead directly into prison.Two-thirds of the people in prison and jails arenow racial and ethnic minorities. Of these, more than half are African American. Latinos make upslightly over 15% of the inmate population. i Black males have a 32% chance of serving time ina prison at some point in their lives. Latino males havea 17% percent chance. White males have a 6% chance.One in eight black males aged 25–29 was in prison orjail at midyear 2003, as were one in 27 Latino males, and1 in 63 white males in the same age group. There are now nine times as many African Americans inprison or jail as on the day of the historic Brown v. Board of Education  ruling that struck down racial segregation in publicschools—an increase from about 98,000 African Americansincarcerated in 1954 to 884,500 incarcerated in 2002. ii Black women are more than twice as likely as Latinas andmore than five times as likely as white women to be in prison.Latinas are three times as likely to go to prison in their lifetimesas white women. About 1 of every 25 Native Americans is incarcerated or under thesupervision of the criminal justice system. This rate is 2.4 times that ofwhites. In some areas, Native American women are particularly target-ed for punishment. In South Dakota, for example, Native women are8.3% of the general population, but 34% of the prison population. iii iSee, for example, Facts about Prisons and Prisoners, The Sentencing Project also Hispanic Prisoners in the U.S., The Sentencing Project See also A Portrait of Women in Prison, Women’s Prison Association, Focus_December2003.pdfData in these fact sheets is drawn from U.S. Department of Justice, Bureau of Justice Statistics.iiSee Schools & Prisons: Fifty Years After Brown. V. Board of Education, The Sentencing Project“The Prison-Industrial Complex in Indigenous California,” by Stormy Ogden, in Global Lockdown: Race, Gender and the Prison-Industrial Complex, ed. Julia Sudbury, NY. Routledge, 2005. Ogdencites U.S. Bureau of Justice, American Indians and Crime, 1999, NCJ 173386 and Justice in South Dakota: Does Race Make a Difference?  Government search Bureau, State of South Dakota, 2002. Are human and civil rights inviolate, or do we consider the rights of certain“others,”whom we fear and hate, to be expendable? Are we willing to trade off the rights of some people in order to secure our own? Two significant conversations about queers and the criminal justice sys-tem ar e taking pl ace in the LGBT movement.The first is about penalty enhancement (harsher sentencing) hate crimeslaws and zero-tolerance measures as preferred policy choices,for many LGBT organizations,for addressing hate violence and harassmentdirected against lesbian,gay,bisexual,transgender,and queer peopleandcommunities.The second conversation is about police violence directed against LGBT people,and human rights abuses ofincarcerated people who are,or arethought to be,queer.These conversations ought to intersect.Each addresses a kind ofviolencehistorically directed against queer communities:hate violence perpetratedby individuals and the systemic violence directed against queers and othervulnerable groups within the criminal justice system.Each illuminates andcomplicates the other—especially when race,economics,gender,age,anddisability are added to the mix.Yet we seldom bring these conversations togetherwithin the LGBT movement.Many ofus tend to treat them as parallel,butsomewhat disconnected,issues.Our movementoften frames LGBT criminal justice discussions asifvarious queer communities all define and experi-ence justice and injustice in the same way.But thefault lines ofrace,gender,culture,class,and agehelp shape our history and experiences as surely asthe fault lines ofsexual and gender identity.Can-did discussion about the interrelationships ofthesefactors in the creation and administration ofcrime policy is often discour-aged,ifnot outright suppressed,or characterized by the dynamics ofaccu-sation and defensiveness.Somehow,the LGBT movement seems to sense that the integration of these conversations would shatter the seductive storyline about victimsand victimizers,the storyline that we are all one or the other—the wor-thy us or the unworthy them —but never both.We might be challengedto admit the painful truth that all ofus can be victims in one situation,vic-timizers in another.We might be challenged to admit that the merging ofthese conversationswould force uncomfortable questions to the surface,questions that  APPLYING THE PRINCIPLES OF NONVIOLENCE, HEALING JUSTICE & HUMAN RIGHTSTO THE STRUGGLE FOR LGBTLIBERATION LGBT Program Community Relations UnitAmerican FriendsService Committee1501 Cherry StreetPhiladelphia, PA 19102Phone: 406/721-7844email: The publication of thisissue brief is madepossible by a grantfrom the Fund forNonviolence.This is the secondin a series ofLGBT justiceissue briefsproducedby AFSC. Two-thirds of thepeople in prison andjails are now racialand ethnic minori- ties. Of these, more than half are AfricanAmerican. Latinosmake up slightly over15 percent of theinmate population. Corrupting Justice: A Primer for LGBT Communities on Racism, Violence, HumanDegradation & the Prison Industrial Complex The Trouble We Have Talking About Queers, Violence & the U.S. Criminal Justice System     Flirting With Disaster:“Getting Tough on Crime” Over the past 30 years,“get tough oncrime”approaches have come to domi-nate the public conversation about jus-tice in the United States.These policies and regulatory measuressend many more people into jails andprisons and greatly increase the lengthoftime that many offenders remainin prison.Consider the context in which this hasoccurred: Fact 1: From 1970–1994,violent crimerates remained fairly stable.Since1994,violent crime rates,overall,havedeclined. 1 Fact 2: Despite falling crime rates,between 1972 and 2003,the numberofprisoners in local,state,andfederalinstitutions increased bymore than 550 percent,from 326,000to more than 2.1 million.Today,about1 in every 140 U.S.residents is in jailor prison. 2 With the addition ofthose on parole orprobation,the number ofpeople underthe direct supervision ofthe criminal justice system is about 6.9million.What can possibly explain the shocking disconnect between these two realities?The answer lies in the increasing,almost relentless,equation ofjusticewith policing and prisons in the era fol-lowing the rise ofmany progressivemovements for human and civil rights,economic justice,and opposition to theU.S.war in Vietnam. 3 The initial factor triggering the explo-sive growth in incarceration in theUnited States is the so-called “War onDrugs”that began to emerge in theearly 1970s.The major engine driving this war was the overhaul ofdrug laws,strengthening a law enforcement focus,including the New York “RockefellerDrug Laws”which created mandatoryminimum sentencing for drug offenses.Other changes in sentencing policy fol-lowed over time:mandatory sentencing for certain crimes,“truth in sentencing”laws designed to ensure those with long sentences serve a significant percentageoftheir sentence without any hope of challenge us to examineinnew ways the verymeaning ofjustice,safety,human rights,and non-violence.And in the present politicalmoment,as the right-wing assault on LGBT families gainsmomentum,conversationsabout the history ofprisons andpolicing in the United States,orabout the political and economicclimate in which “get tough oncrime”measures proliferate,don’tseem very important.Our movement does not talk easily about the countless waysin which the politics of fear,rage,and resentmentmay influence and shapeour own criminal justicepolicy choices.We who are lesbian,gay,bisexual,transgender,two-spirit,and queer know the manyways in which hate violence and systemicdiscrimination devastate individuals,families,and whole communities.Do we also knowthe ways in which “get tough”crime policy andprison profiteering affect queers,communitiesofcolor,women,poor people,youth,people withmental illness or disability—and,indeed,entirecommunities?Ifwe knew,what would we do?Drawing on more than 80 years ofAFSC engagementwith peoples experiencing the violence ofwar,hatred,and injustice,50 years ofAFSC engagement with theU.S.criminal justice system and more than 30 years of AFSC advocacy for LGBT rights and recognition, Corrupting Justice offers this introductory look at thehuman,spiritual and economic shadow ofcrime policy inthe United States,and its disastrous effects on our society.In doing so,the American Friends Service Committee seeksto help bring these difficult discussions together,within aframework ofnonviolence,human rights,and justice that healsand transforms.Authentic justice,we believe,is predicated upon the beliefthathuman rights are universal and inherent.It never permits us totrade offthe rights ofsome dehumanized “other”in order to secureour own.Nor does it sanction trafficking in or profiting fromhuman misery.It seeks to hold not only individuals,but institutionsaccountable for the harm they do,tend to the long-term needs of those who suffer the harms ofviolence,and to prevent further harm,without compounding the cycle ofviolence. Policing Queers:Homophobia & Gender Panic Behind Bars The U.S. Supreme Court decision striking down state sodomy laws (Lawrence and Garner v. Texas)  did not erase the historic criminalization of LGBT sexuality in theUnited States. Anti-LGBT religious and political leaders often characterize all  LGBTpeople as sexual predators and pedophiles, a politicization of homophobia andgender non-conformance that is both reprehensible and dangerous.Anti-queer discrimination and violence not only follow LGBT people into thecriminal justice system, but also help to put us there.Incarcerated LGBT people—both youth and adults—are often subjected to verbal harassment, physical abuse other forms of mistreatment from otherprisoners, guards, and other criminal justice staff. i Sexual assault and rape—by inmates and staff—are endemic in manycorrectional institutions. LGBT youth and adults are frequent targets.Trans youth and adults are often subjected to additional forms ofharassment and abuse while incarcerated. This may include func- tional classification as sex offenders, denial of appropriatehealth care services, and prescription drugs, placement ingender-inappropriate facilities, and the like. ii LGBT people—especially youth—in correctionalfacilities are often segregated from the general popu-lation and placed in isolation—allegedly for theirown “safety. In reality, isolation magnifies the harsh-ness of incarceration.Poverty, homophobia, and transphobia funnel manyyoung queers into the system. Research suggests that a dis-proportionate number of homeless youth are queer. Many, whohave been abused, neglected, or kicked out of their homes,often engage in prostitution, petty theft, and drug dealing inorder to survive on the streets. iii Queer teens who are not separated by significant agedifferences and who engage in consensual sex can in somejurisdictions receive significantly harsher sentences thanyoung heterosexual partners who engage in the same sex-ual activity. iv Prosecutors in capital cases often use homophobicarguments to encourage juries to give death sentences to LGBT defendants v or use a “gay panic” defense incases involving violent assault against persons whoare, or are thought to be, gay or transgender. vi iSee, for example, Torture & Cruelty in Michigan Prison System, byDave Forbush, Prison Outreach Project, Triangle Foundation, n.d.,, for example, Nowhere to Go But Out: The Collision Between Transgender & Gender-Variant Prisoners and the Gender Binary in America’s Prisons  , by Alexander L. Lee, Boalt Hall School of Law,UC Berkeley, Spring, 2003,  justice for all? A report on lesbian, gay, bisexual and transgendered youth in the New York Juvenile Justice System, by Randi Feinstein, et al, an independent report commissionedby the Lesbian and Gay Youth Project of the Urban JusticeCenter, 2001. See also Violence and Female Delinquency: Gender Transgressions and Gender Invisibility, by LaurieSchaffner, Berkeley Women’s Law Journal 14  (1999): 40.ivSee, for example, Kansas v. Matthew Limon: Case Background, American Civil Liberties Union Lesbian & GayRights Project, December 1, 2003, Updated January 27,2005. In the Killing Fields of the State: Why the Death Penalty is a Queer Issue, an American Friends ServiceCommittee LGBT Criminal Justice Issue Brief, 2004.“Gay panic” is a term characterizing a legaldefense against crimes alleged to have committed aviolent assault or murder against a person of thesame sex because, it is alleged, the victim “cameon” sexually to the defendant. While “gay panic”defenses usually don’t win acquittals, they oftendo influence judge and jury perception of defen-dant culpability and may help mitigate sentencesupon conviction. Authenticjustice, we believe, ispredicated upon the belief that human rights are universaland inherent. It never permits us to trade off the rights of somedehumanized “other” inorder to secure our own.  grim and bureaucratic—done or at least paidfor by the state with our money and inour names.“Get tough on crime”policies havealso produced the warehousing and confinement ofa staggering number ofpeople,massive andbrutal abuses ofhuman rights,profiteering and economic exploitation,increasing redirection ofpublic fundsaway from human needs into policing (domestic and global) and prisons,andmany kinds ofviolence done to entirecommunities because ofthe relent-less growth ofwhat is called “theprison-industrial complex.” What Is the Prison Industrial Complex? “Over the years I have found it important to remind myself that theDepartment of Corrections is more than just a set of institutions, itis also a state of mind.” —Bonnie Kerness,Coordinator ofAFSC Prison Watch Project.Prison Watch monitors human rights concerns,violations andabuses in U.S.federal and state prisons. The creation,administration,and servicing ofnew jails and prisons has become a growth industry.Combined with increased rise ofcorporate influ-ence over public policy and a ceaseless rightwardpolitical push toward privatization ofpublicservices,the “get tough”measures have producedan intricate system ofpublic and private inter-ests—public officials,corporate executives andlobbyists,other interested parties,and the insti-tutions in which they work—that promoteharsher sentencing,incarceration,and prisonsas the  preferred means ofmanaging notonly murder,physical assault,rape,andsimilar acts ofviolence,but also anincreasing number ofcomplex socialand economic problems (such asdrug use,mental illness,behavioralinfractions in schools,and poverty). This system is referred to as theprison industrial complex. Here,AFSC speaks ofthe systemic characteristics and overall patterns of the prison industrial complex.Whilethere are many women and men of conscience working within or forthe criminal justice system,oftenlaboring with integrity and cour-age in difficult circumstances,AFSC experience confirms thatviolence,injustice,and abuses of human rights are endemic tothe system as a whole. release prior to that time,and “three strikes”laws. 4 In the 1980s,the penalty enhancement templatebecame the norm for hate crimes bills.In the past decade,many states have passed lawsmaking it much easier to try and sentence youth asadults.The increased militarization ofthe borderbetween the United States and Mexico and repres-sive federal security initiatives that began long before 9/11 have produced a new “immigrantincarceration industry.”Other “get tough”measuresinclude zero tolerance policies (which fuel a “schoolto prison pipeline”for many young people),so-called “anti-gang”laws that cast a very wide netamong youth,and more.The ability ofjudges touse discretion in sentencing has been restricted,and the justice goal ofrehabilitation for incarcerat-ed offenders—most will be released back into thecommunity,and many are now in their teens andtwenties—has been all but abandoned.How much ofthisincarceration increaseis due to dramaticincreases in crimerates? According to theSentencing Project,forthe period 1980–1996,when the inmatepopulation tripled,88percent ofthe increase was a result of“get tough”sentencing policies,and only 12 percent was due tochanges in crime rates 5 Supporters promise that these policies will “send amessage”that certain offenses and crimes ofvio-lence are “not acceptable,”and that they will deterviolence and produce safety.The cumulative effect of“get tough”measures,however,is not safety.Rather,it is the maintenanceofan almost constant and growing sense offear,combined with the rapid expansion ofan incarcer-ation industry,and a widening spiral ofviolence— “Being a womanprisoner…can be a terrifying experience…” i The “war on drugs” has also be-come a de facto  “war on women.”The explosion in female incarcerationis fueled by convictions for nonviolentcrimes carrying mandatory sentences.The number of women in state andfederal prisons has increased from 12,300in 1980 to 103,000 in 2004.While the number of women in prison isfar less than the number of men, since 1980, the rate of increase in women prisoners hasbeen far greater—nearly double the rate ofincrease in male prisoners. ii 38% of women prisoners are AfricanAmerican; 17% are Latina. When Asian/PacificIslander and Native American and other indige-nous women are added to the total, about 2/3 ofincarcerated women are women of color.The average age of women in prison is 29; more than half have not finished high school.Rape and sexual assault of women by guards iscommon in U.S. prisons and jails, with frequent retalia- tion by officials for those who protest and complain. iii Additionally, many women in prison trade sexual favorsfor various benefits, ranging from cigarettes to betterprison jobs to affection.A disproportionate number of incarcerated women—estimates range from more than 40% to more than 80%—have been sexually and/or physically abused prior toincarceration.About 60% of incarcerated women are mothers. Manywomen’s prisons are in rural communities that are inaccessible to children and other family members, and very few programsexist that permit incarcerated mothers to live with their children.Shackling of pregnant prisoners is policy in federal prisons andcommon in state prisons. Shackling during labor may cause seri-ous complications for both mother and baby. iv iHeading drawn from the summary of All Too Familiar: Sexual Abuse of Women in U.S.State Prisons, Human Rights Watch, 1996. Fact Sheet: Women in Prison, The Sentencing Project, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons, Human Rights Watch,1996. See also Abuse of Women in Custody: Sexual Misconduct and Shackling of Pregnant Women: A State-by-State Survey of Policies and Practices in the U.S., Amnesty International, Women in Prison, Amnesty International USA,  We begin to view the creationof safety as a process ofexcluding feared and unwant-ed “others” from our midst—not as a process of buildinginclusive, compassionate, andjust communities. 726U.S.532RUSSIA413SOUTH AFRICA209ISRAEL182MEXICO142ENGLAND AND WALES118CHINA117AUSTRALIA116CANADA96GERMANY91FRANCE81SWEDEN58JAPAN29INDIA RATE OF INCARCERATIONIN SELECTED COUNTRIES Incarceration rate (number of people in prison per 100,000 population) Today, about 1 in every140 U.S. residents is injail or prison. 3 The Sentencing Project   These “results”of“get tough”crime policy inthe United States are worth considering when progressive movements are tempted toturn to the criminal justice system for effec-tive responses to violence directed against LGBT communities,people ofcolor,women,immigrants,Jews,Muslims,people with dis-abilities,and other targeted communities.  A Culture of Fear Produces aNation of Enemies, Wars &Prisons The emotional “hook”that convinces peopleto accept the “get tough”policy approach isfear.By appealing to people’sfears and anxieties ofbeing vic-timized in some way—physical-ly,economically,emotionally,spiritually—“get tough”policieshave gained extraordinarymomentum,fueled politicalcampaigns and seized the publicimagination.“Get tough”campaigns gatherstrength each time we witness a particularlybrutal act ofviolence directed against indi-viduals or whole communities.Often feeling outraged by such violence,and helpless tohave prevented it in the first place,we want todo something—anything—that communi-cates not only outrage,but our determinationthat this must never happen again.“Get tough”policies serve as a powerful wayto “strike back”at whatever threatens us.After all,we’re much more likely toaccept without question a “gettough”vision ofjustice whenwe’re fearful and angry.At such moments,concepts ofharsh pun-ishment and retribu-tion seem not onlyappropriate,but desir-able.Whatever happensto perpetrators behindbars,we tell ourselves,isrichly deserved.In a society perpetually divided into end-less varieties of  us and them, concern for whathappens to prisoners is often viewed as aban-doning concern for those who have been hurtor victimized.We learn to view the world in stark “whichside are you on?”terms.Human rightsbecome conditional.Racial and class biases have long been embedded in the workings of the U.S.criminal justice system. Race and class are the most powerfuldeterminants for who is most likely to bearrested, charged, tried, and convicted of  particular crimes—and the most likely toreceive harsher sentences. Most prisonersare people ofcolor and poor people.Vio-lence is commonplace within U.S.prisonsand jails.Prisons and jails have long con-tracted with outside vendors for particularservices,such as food and medical treat-ment,and have exploited prisoners as a freeor cheap source oflabor,contracted out toother public or private enterprises.That’s not new.What is differ-ent today is the creation ofavast,new marketplace in whichthe profits are dependent uponthe imprisonment,control,andcontainment ofhuman bodies.Themomentum toward production of greater corporate involvement in theprison industry began in earnest in the1980s,with the creation ofnew,privatized prison con-struction and management firms.A dependable and increasing supply ofprisoners isessential to the economic security and expansion ofthepublic agencies and private businesses that supply,manage,staff,and service the prisons.Besides profit,the policies and practices that support theprison industrial complex in the United States have pro-duced: The highest rate ofincarceration in the worldThe mass incarceration ofpeople ofcolorThe rapidly increasing incarcerationofwomenThe criminalization ofimmigrantsThe criminalization ofyouthSystemic and violent racism,misogyny,and homophobiaEndemic abuses ofhuman,constitutional,and civil rightsPermanent or temporary disenfranchisement of millions ofvoters,most ofwhom are people ofcolorIncreased use ofjails and prisons to warehouse people withmental illnessesIncreased use ofjails and prisons to address the effects ofpersistent,widening povertyIncreased use ofthe death penalty The Criminalization of Youth Over the past two decades, juvenile justice emphasis on preven- tion, education, and rehabilitation has ceased. Despite fallingjuvenile crime rates, incarceration is now the preferredapproach for youthful offenders—particularly youth of color.We have become a nation that prepares to jail youth rather than educate and care for them.At the same time juvenile crime rates have fallen, fear-driven rhetoric about youthful offenders (“super-predators”)has been used by politicians to create a public perceptionof “out of control” youth crime waves.Over the past 20 years, most states have adoptedmeasures that make it easier to try juveniles as adults,and to sentence youth to adult prisons. Today, at least 1in 10 incarcerated youth resides in adult prisons.Youth of color are far more likely than white youth tobe tried in adult criminal courts. One important studyof 18 jurisdictions throughout the United States con-firmed that, in the first six months of 1998, 82% of thejuvenile cases filed in criminal court involved youthof color. Almost 60% of those cases involvedAfrican American youth, 23% involved Latino/ayouth, and 19% involved white youth. i Youth incarcerated adult prisons are five times more likely to be sexually assaulted andeight times more likely to commit suicide thanare youth in juvenile facilities. ii Even in juvenile facilities, youth often areconfined under conditions that violate inter-national human rights standards. Theseinclude: serious overcrowding, inade-quate provision of medical, mental health,and other essential services, use of bru- tal physical force and restraint proce-dures, and prolonged use of solitaryconfinement.So-called “zero-tolerance” poli-cies in schools have become a newway to funnel youth, particularlyyouth of color and youth with men- tal or emotional disabilities, into the criminal justice system. iii iSee Summary of CJJ Positions on Key Juvenile Justice Issues, Coalition forJuvenile Justice, http: // Children in Adult Jails Factsheet,Building Blocks for Youth, adultjails/factsheet.htmliiiSee Opportunities Suspended: The Devastating Consequences of Zero Tolerance and School Discipline. Advancement Project and TheCivil Rights Project, June 200.http: // See also Zero Tolerance: Key Studies,Building Blocks for Youth, tolerance/studies.html  What is different todayis the creation of a vast,new marketplace inwhich the profits aredependent upon theimprisonment, control,and containment ofhuman bodies.     ã   W A R O  N   D    R     U      G       S         ã     W    A   R   O    N    C     R   I       M     E    ã       W     A      R      O       N           I       M       M                      I        G       R       A     N      T     S ã   M    I   L   I   T  A  R  I Z A T  I  O  N   O   F    T    H    E     U     .  S      .     -       M     E         X        I                   C    O   B   O   R    D   E    R  ã    W     A    R    O     N    T    E     R     R     O     R    I     S       M       ã      C      U     L     T       U     R     A    L      W    A    R    S
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