Critical Race Theory in the United States

This Black History Month was the first one to be celebrated with abundant restrictions. Within the past calendar year, 14 states have made formal restrictions against the teaching of critical race theory (CRT) in the classroom. An additional 35 states have moved towards taking action on restricting CRT. The threat of not adhering to these restrictions is real. Numerous instructors from elementary school teachers to professors have and will face repercussions if they hold classroom discussions on systemic racism. These restrictions are nebulous to navigate with the proposed South Carolina law prohibiting teachers from discussing topics that create “ ‘discomfort, guilt or anguish” on the basis of political belief.’ This makes many topics related to the darker side of American history difficult to touch upon.

Two Black children sit at a table beside a Black man looking at worksheets. The children wear yellow attire and the man is in a red-orange shirt.
Two Black children sit at a table beside a Black man looking at worksheets. Source: Yahoo Images

What is Critical Race Theory?

Critical race theory emerged from the mind of Derrick Bell, a Black Harvard Law professor. The theory was the result of courses aimed at understanding the relationship between American policies and race. Bell ultimately resigned from his position due to his view of Harvard’s discriminatory hiring practices. Bell’s resignation and the accompanying disappearance of Harvard Law’s only course on race and the law left many students, especially Black students like Kimberlé Crenshaw, who eventually developed the notion of “intersectionality”, at odds with the administration on the importance of re-instituting a course focused on the topic. The result was a series of campus discussions on said topic by POC scholars that led to the full emergence of CRT. A step beyond the more digestible concepts traditionally anti-racist concepts like civil rights, CRT argued that American history and law were intertwined with a deeply entrenched racism that ultimately led to discriminatory proceedings and policies that have marginalized people of color, especially Black Americans.

Though initially shrouded in the covers of academia, CRT became more mainstream with President Clinton’s nomination of Lani Guinier, American legal scholar and civil rights theorist and the first woman of color to be appointed tenureship at Harvard Law, to head the Justice Department’s Civil Rights Division. Aggressive Republican campaigns to prevent Guinier’s appointment led to the twisted reduction of the theory to an American history hate campaign framed by race, an idea that still persists today.

A lage crowd of people stands before the Washington Memorial. They are holding signs and densely packed. There are tents and structures that have been placed in the crowd.
A large crowd of people stands before the Washington Memorial. Source: Yahoo Images

Why Is It In The News?

CRT has only made a recent reappearance into greater societal functioning when the summer of 2020 brought anti-racist reading lists to the attention of many including conservative media, courtesy of Christopher Lufo, senior fellow at the libertarian Manhattan Institute. Lufo made known whistleblower information about Seattle’s race training for municipal employees. Though Lufo never used the words critical race theory in his exposé article on blackness vs. whiteness being the same as good vs. evil in the eyes of municipal diversity training and enforcing leaders, the rush of support from people who had experienced and disliked similar diversity trainings encouraged him to write a second article in which he first employed the term “critical race theory.” He argued that CRT trainings were rapidly infecting federal government proceedings and called for President Trump to ban all trainings in federal departments. This call led to an executive order aligning with Rufo, soon challenged in court and later rescinded by President Biden, sparked the raging fire over the fight of CRT and what role it should play in education, namely K-12, and if it should have a role in education.

Now, though many Americans are still confused by what critical race theory is, divisive rhetoric has led to support behind anti-CRT bills. The strange result is a push for restriction on free speech from conservatives and call backs to the 1st Amendment from liberals.

A man in a suit, an older woman, and a taller older woman all stand from left to rght holding signs. The man is dressed formally. They hold signs that (read from left to right), say "We the parents stand up!" and Stop teaching critical racist theory to our kids" and "STEM not CRT" and "Education not indoctrination."
People stand with signs protesting the teaching of Critical Race Theory in schools.

Thinking In The Bigger Picture About Education Restrictions

Though ironic, the result is dangerous. Critical race theory has been misconstrued and grossly exaggerated, encouraging the silencing of educators on pertinent topics making up the foundation of American history. Legislative action backing the quelling of potentially uncomfortable topics is a slippery slope that’s bound to slide fast into the realm of dangerously unassuming utopian worlds of literature like Fahrenheit 451 and 1984 that upon closer look are dystopian. As such, the filtering of knowledge and state-sanctioned control of educational content consumption flirt dangerously on the lines of government sanctioned erasure of BIPOC history.

In an America that’s growing increasingly diverse in color, creed, origin, etc. it becomes arguably more important to address the darker side of American history. Only by shining a light on past misdeeds can we educate future generations on how to work towards a better tomorrow.

 

What Can I Do?

If you’d like to engage more with critical race theory:

1.    Consider reading more about the topic to further educate yourself on the topic

2.    See what your stance your state is taking when it comes to CRT

3.    Hold a discussion with family and friends on CRT and what it really is

 

Solitary Confinement Amounting to Torture

Image of concrete walls allowing some sunshine with a small window near the top.
jmiller291. Solitary Confinement, Old Geelong Gaol 7. Creative Commons for Flickr.

In the United States, the earliest experiments with solitary confinement began over two centuries ago, during the Enlightenment. Champions of the idea of natural rights, thinkers of the era found that public corporate punishment was incompatible with the development of a free citizen. Instead, silence and solitude would allow prisoners to reflect and that would induce repentance that would drive prisoners to live a more responsible life, making individuals the instrument of their own punishment. However, as the United States’ first silent prisons and penitentiaries were publicized, renowned nineteenth-century thinkers such as Alexis de Tocqueville and Charles Dickens visited these institutions to observe these revolutionary systems. Once intrigued, these icons now condemned these silent prisons as de Tocqueville remarked,

This absolute solitude, if nothing interrupts it, is beyond the strength of man; it destroys the criminal without intermission and without pity; it does not reform, itkills.

As other physicians and experts echoed their concerns, reporting the high risk and evidence of insanity and death of inmates existing in solitude, it gained the attention of the United States Supreme Court which influenced a new philosophy in correctional administration and gradually reduced the regularity of the practice.

This period of relief lasted until prisons began using solitary confinement to segregate more “threatening” and “dangerous” prisoners who were considered a risk to the safety of other prisoners and staff. Then, retribution and deterrence replaced rehabilitation as the professional purpose of corrections. As the U.S. responded by institutionalizing longer sentences, building more prisons, and abolishing parole, the use of solitary confinement rapidly increased with prison growth.

Today, the United States not only incarcerates more people than any other nation, but we also expose more of these people to solitary confinement than any other nation. The United States holds around 100,000 prisoners in solitary confinement typically as punishment, as a tactic to control overcrowded institutions, and as safety from or for the general population.

As individuals, inmates tell us what it is like in solitary confinement. In solitary confinement, your world is a gray concrete box. You may spend around 23 hours a day alone in your cell which are only furnished with a toilet, sink, and bed. When prisoners are escorted out of their cells, they are first placed in restraints through the cuff port and sometimes with additional leg or waist chains and tethered by the hooks on their cuffs to an officer. Prisoners are controlled by bodily restraints, with pervasive and unforgiving round the clock surveillance, and the restricting hallways and cells they exist in. They are lead to solitary exercise each day and a brief shower three times a week then back to their cells. Confined to their own concrete cells, prisoners are both physically and psychologically removed from anyone else. Prisoners depend on officers to bring them anything they may need and are allowed to have such as toilet paper, books, or letters they may receive. Many prisoners relate with dark thoughts that haunt them in isolation. Many become angry and hateful behind compliance.

Where many express anger, they all express a struggle to maintain dignity and a sense of self or humanity. Being alone, prisoners forget how to interact with others. Feeling as though they have nothing to live for in isolation, prisoners may give up on these things. Many interviews describe watching others who were locked in indefinite solitary choosing between giving up by either through suicide or turning into an unfeeling and uncaring creature. Correctional facilities’ workers express their concerns as to why and how they become desensitized through strict policy, regulation, and the specialized emotional stance necessary to interact with these prisoners. Acting as servants for the lives of some bad apples, observing civilized men be reduced to the natural man, and acting in adherence to authority with little voice heard by superiors, this work requires a specialized emotional stance.

Instead of regular and healthy social relationships important to human survival, these prisoners are embedded in a structure that extends itself into them. It enters their mind and sometimes switches off the human inside or sometimes forces it to become violent enough to compete. In this way, it also robs them of self-determination, liberty, and other forms of autonomy.

Image of protesters of solitary confinement holding signs connecting solitary confinement to torture and mental illness.
Felton Davis. 16-11-23 02 Union Square Vigil. Creative Commons for Flickr.

Because the practice of solitary confinement is a global one and brings claims of widespread abuse, the UN special rapporteur presented his report, or evaluation, of solitary confinement. This rapporteur defined prolonged solitary confinement as isolation for more than fifteen days because studies show that the effects of solitary confinement may become irreversible after this point as the rapporteur concluded that solitary confinement can amount to torture or cruel inhuman and degrading treatment.

International and domestic laws prohibit all forms of Racial Discrimination, which address variations in solitary confinement’s demographics, and rights of persons with disabilities which protect individuals with mental, or other, illnesses. They also guarantee the rights of women and children or juveniles, which are especially vulnerable under conditions of solitary confinement or isolation. Both sides address the minimum standards for the treatment of prisoners. More specifically, they address conditions of solitary confinement which always may apply to every individual.

Domestically, the Eighth Amendment reveals how the United States Constitution addresses Solitary Confinement. The Eighth Amendment prohibits the government from inflicting “cruel or unusual punishment” on someone convicted of a crime. This allows these prisoners to challenge their conditions while in custody and the actions of prison officials. To do this, prisoners must first show that the challenged condition is “sufficiently serious” and that prison officials acted with deliberate indifference to the condition. Close observation of court decisions reveals that there is no organized methodology to determine what makes a condition “sufficiently serious”. This decision is made in each case by the personal standards of judges. The judge may question why the prisoner was placed there; however, the Supreme Court has not made a ruling whether intent should play a part in this evaluation. Courts disagree whether it should matter why the individual was placed in solitary confinement. Also, the Amendment did not answer when a prison condition is punishment or not. The debate remains whether the effect of the conditions on the prisoner or the intent of officials makes them punishment. In court, Eighth Amendment analysis hinges on the motivations of state actors and prison officials it is supposed to act as a check against. The conditions of the Eighth Amendment fail to protect prisoners from inhumane treatment through the scope of prison officials’ intent and judges’ objective analysis.

The ICCPR is international law that prohibits torture or cruel, inhuman or degrading treatment or punishment. It later states that people deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of a person and the treatment approach for prisoners should be aimed at efficiently improving their reformation and social rehabilitation.

In 2015, the United Nations General Assembly adopted the Mandela Rules that prohibited restrictions and disciplinary sanctions that could amount to torture or cruel and degrading treatment or punishment, such as Indefinite Solitary Confinement, Prolonged solitary confinement, or to place a prisoner in a dark or constantly lit cell. It defined solitary confinement of prisoners for 22 hours or more a day without meaningful human contact and prolonged solitary confinement for any time period over fifteen days. It states that solitary confinement should only be used as a last case resort for the shortest time possible and given due process to each case. Finally, it paid special attention to protect prisoners with disabilities which may be magnified, and especially vulnerable women and children from solitary confinement.

Through these treaties and agreements, States do not only assume obligations internationally but to their own people as well. Just like our own constitution, these international laws were agreed to and are legally binding to regulate the conduct of states with their citizens. However, without international forces to enforce and regulate these agreements, states may ignore or lose sight of their importance.

Despite these resolutions, Domestic laws are vague so that it is doubtful they meet minimum requirements regarding the ones set by human rights instruments. This creates debate and little guarantees in the legal system. They also undermine fundamental guarantees of due process, are applied randomly, and do not protect the prisoners’ rights.

Today tens of thousands of humans remain alone in concrete boxes in the United States. This report concludes that their conditions are emotionally, physically, and psychologically destructive. They are destructive because it robs us of many things that makes life human and bearable like stimulus through social interaction and interaction with the natural world. Under total control and out of the public eye, people may be subjected to incredible human rights violations. By allowing our government to ignore these people, we are accepting this indifference towards others under its care. By ignoring their human rights, in this way, we diminish our own.

The First Step Act: A Step Towards Criminal Justice Reform

A slightly open jail cell door.
Untitled. Source: Neil Conway, Creative Commons

On December 21 of 2018, Donald Trump signed the First Step Act into law.  This piece of legislation has been marked by some as a massive breakthrough in criminal justice reform.  The bill is intended to “ensure people are prepared to come home from prison job-ready and have major incentives to pursue the life-changing classes that will help them succeed on the outside and includes changes that will potentially lower the cost of upkeep for correctional facilities. 

Improving Experiences of Time in Prison and Their Outcomes 

Many of the aspects of the First Step Act are geared towards decreasing recidivism (people returning to criminal behavior after being released from prison) through opportunities and resources that help prepare people for their lives after incarceration.  For example, the bill creates strong incentives to encourage prisoners to participate in preparative programs that are available to them.  For every 30 days of “successful participation,” individuals can receive 10 days of prerelease custody, where they are transferred to halfway houses or home confinement.  Incentives can also include increased phone and visitation privileges, access to email, increased commissary spending, and other requested incentives. 

The bill also designates $250 million to be used over five years by the Federal Bureau of Prisons (BOP) to expand and develop skill-building classes and vocational training opportunities.  It also allows the BOP to work with outside organizations that can provide such classes.  According to the First Step Act, prisoners who are at a medium or high risk of recidivism are to be prioritized for receiving these opportunities, as well as counseling and treatment.  Before leaving federal prison, all are to receive their ID, allowing people to re-enter society more quickly and avoid “collateral consequences of incarceration.” 

In order to make it less difficult for families to visit, the bill states that people should not be placed in prisons that are more than “500 driving miles” away from their families.  This improves their ability to maintain ties with their relatives, which can improve their quality of life while incarcerated and make the process of reintegration into society easier afterwards. With the help of a strong support system and the tools needed to find work, released prisoners have a better chance of finding their place in their communities and not being reincarcerated later. 

Decreasing the Population Actually in Prison 

There are some aspects of the First Step Act that help to decrease the population of people in prison.  Increases the number of days of good time credit, which is earned through good behavior, from 47 to 54 days per year.  This change also applies to everyone in federal prisons who has already earned good time credit.  It is estimated that this change will save $40 million in the first year.  Additionally, the bill required the BOP to transfer prisoners that are considered low/minimum risk to prerelease custody and expanded compassion release.  Eligibility for the elderly offender program of compassion release now starts at age 60 instead of 65, the minimum portion of one’s sentence that must be served has been decreased from 75% to 66.7%, and the program is now available in all prisons. 

Views of the Purpose of Prison 

One’s understanding of the importance of legislation like the First Step Act can be significantly impacted by their perspective on the purposes of prisons.  Some people believe that prisons should be used to achieve retributive justice, where the main purpose is to punish criminals for their wrong-doings and to have them suffer for their action.  For someone who believes in retributive justice, the changes made by the First Step Act may not seem so important.   

Alternatively, other people believe that the incarceration system should be used to rehabilitate prisoners and prepare them to re-enter society as individuals who can make more positive contributions to their community and avoid taking actions that would lead them back to imprisonment.  When you look at the First Step Act from this point of view, it is easy to see why the bill’s intended impacts are so significant.  It gives people a chance to learn from their mistakes and helps them become more productive members of society. 

Three prison windows.
p1000578.jpg. Source: David Johnson, Creative Commons

Why It Matters 

As of 2016, there were 2.2 million people incarcerated in the United States.  That year, $57.7 billion were spent in state expenses for the upkeep of correctional facilities.   

According to the American Civil Liberties Union (ACLU), “Chronic illnesses go untreated, emergencies are ignored, and patients with serious mental illness fail to receive necessary care,” which, in some cases, has led to the deaths of incarcerated individuals.  This violates Article 25 of the United Nations’ Universal Declaration of Human Rights (UDHR), which states that everyone has the right to a living standard that is sufficient to support their health and well-being and specifically includes things like medical care and vital social services.  Prison authorities are legally responsible for providing prisoners with their medical needs, based on the Supreme Court’s ruling in the case of Estelle v. Gamble.  The ruling recognizes the potential of ignoring these needs to “amount to cruel and unusual punishment” due to the pain and suffering they can cause.  However, overcrowding in prisons and a lack in resources makes giving prisoners the care they need a challenge. 

The intended outcomes of the First Step Act can improve the access to human rights of people who have been incarcerated.  As it is said in the UN’s Basic Principles for the Treatment of Prisoners, prisoners are entitled to all the rights that are declared in the UDHR and other human rights documents and should have access to resources that can aid their ability to successfully rejoin society.  Decreasing rates of recidivism, as the actions of the First Step Act hopefully will, helps to lower the number of people in prison overall.  This allows for a change in the allocation of funds to take better care of people living in prisons, giving them greater access to their human rights.  People living in prisons are human beings just like everyone else and should not be treated as anything less.