Though we often think of “crime” as an objective term for all acts of violence and harm, crime is a social and legal construction that is deeply subjective, morphing to maintain power structures. Laws manufacturing new crimes were used to re-enslave recently freed Black Americans, as the 13th Amendment maintained slavery “as a punishment for crime.” In Slavery by Another Name, Douglas Blackmon describes how laws were written after the Emancipation Proclamation to intentionally criminalize actions of Black residents to push them back into a system of involuntary servitude. Mirroring chattel slavery, Black people labeled “criminal” could be thrust back on to the plantations from which they were freed. During the Great Nadir — the period from post-Reconstruction until around 1923 often considered the worst period in history for Black Americans — the courts and deputized white mobs carried out “justice” in the criminal legal system. This period encompasses the lynching era and the rise of the Ku Klux Klan as the main source of order in society, with the 1921 Tulsa Massacre serving as a notable example. Black Tulsans were criminalized for being self-reliant through mob “justice,” then confined to internment camps and camps and forced into unpaid labor to clean up the wreckage of Greenwood. This reinforcement of order by violent means is what criminalization serves to carry out. In every period in American history, Black people have been forced into new forms of subservience. The criminal legal system is the latest iteration of this long history.
Criminalization, the first peak of the carceral state, pathologizes the behaviors, beliefs, or identities of marginalized communities to reduce them to criminals. Historical and current examples abound: the Fugitive Slave Act criminalized Blacks escaping from bondage even in “free” states, laws banning Indigenous languages and spiritual traditions turned Native Americans into savage outlaws, anti-sodomy and degeneracy laws rendered LGBTQ+ people as deviants, militarizing the southern U.S. border turned undocumented immigrants into “illegals”, the War on Drugs turned substance abuse in communities of color into crimes, child welfare regulations criminalize poor mothers, and so on. Laws like these codify the notion that criminality and deviance are innate characteristics of certain people, which undermines the humanity of entire communities. In doing so, criminalization allows society to rationalize the inhumane treatment of individuals who are controlled by the carceral state. As scholars have pointed out that dehumanization overcomes the normal human revulsion against harming people, criminalization allows certain people to be treated as disposable without threatening “ordinary” citizens. In fact, it makes controlling those people essential to maintaining a sense of law and order.
Once bodies are criminalized, the carceral state uses punishment as the sole tool of accountability. If certain people are predisposed to criminality, as the Law & Order Narrative goes, then retribution, rather than repair, is the goal of punishment — and so we see increasingly punitive methods deployed. Overt examples from the criminal legal system include draconian sentencing laws (e.g. mandatory minimums, three-strikes penalties, sentence enhancements, capital punishment, 85% crimes, LWOP, etc.), sanctions for parole and probation violations, financial penalties, failure to pay warrants, sentencing disparities, and so on. Less visible practices normalize criminalization in our culture: court fines and fees, sweeps of homeless encampments, anti-sex work laws, anti-immigrant policies, pre-trial risk assessments, Section 8 restrictions, and other examples that assume guilt based on identity or social status.
Criminalization, like all aspects of the carceral state, has a significant racial dimension: research has demonstrated a strong Black-crime association in the American psyche, based on stereotypes of Black people as animalistic, deviant, and “bad,” as Terence Crutcher was labeled. This bias that has outsize influence on the ways Black people are targeted by the criminal legal system. As Stanford psychology professor and MacArthur “genius” Dr. Jennifer Eberhardt says in her book Biased: Uncovering the Hidden Prejudice That Shapes What We See, Think, and Do,
“It’s implausible to believe that officers—or anyone else—can be immersed in an environment that repetitively exposes them the to the categorical pairings of blacks with crime and not have that affect how they think, feel or behave. … Because blackness is both statistically and stereotypically intertwined with crime, race and reflexively be treated as a visible marker of criminality.”
As a result, Black bodies are criminalized at much higher rates.