Structural discrimination and color-blindness in United States and European prison systems

Lucia Re

To further investigate the notion of "race" as a "diagnostic tool" (1), I will try in this essay to combine reflections on the color-blindness principle as elaborated by critical race theorists, (2) with the notion of "structural discrimination" that originates from the work of the French sociologist Pierre Bourdieu. I will then attempt to use the two notions (color-blindness and structural discrimination) to interpret a specific social reality: that of United States and European prison systems.

1. The notion of color-blindness

Neil Gotanda has analyzed the principle of color-blindness in connection with the constitutional history of the United States. The principle was first asserted in the Plessy v. Ferguson decision of 1896, in which the Supreme Court upheld the constitutionality of the Southern states' racial segregation system according to the principle that whites and blacks were equal but separate. The color-blindness principle was also confirmed by the Brown v. Board of Education II case of 1955, even though just a year earlier the Brown v. Board of Education I decision had held racial segregation to be unconstitutional. In the Court's view, the 1896 decision had failed to consider the racist character of segregation, which was based on the belief in the inferiority of blacks; yet the color-blindness principle was to be maintained.

The color-blindness principle is therefore compatible with the end of the racial segregation system. It stipulates that institutions remain blind to a citizen's skin color and ethnic origin. Based on color-blindness, race is irrelevant for the legal and judiciary system. The color-blindness principle is a principle of formal equality, perfectly faithful to the liberal spirit of the United States Constitution. It can be found in the decisions of the Supreme Court as well as in the 13th, 14th and 15th Amendments to the Constitution.

Even though the U.S. legal and political systems have their own distinctive characteristics, the color-blindness principle does not seem to apply only to the modus operandi of North American institutions. It can also be found in European directives regarding racial discrimination and in the European Union's Charter of Fundamental Rights, whose Article 21 forbids discrimination based not only on sex, religion, etc. but also race and nationality. Many European policies aimed at countering discrimination seem to be founded on the principle of the irrelevance of race. (3).

Gotanda instead argues the importance of taking "race" into account also for evaluating individual situations since, due to the historical inequality between whites and blacks, adopting the color-blindness principle means ignoring the history of discrimination and therefore of white domination. Gotanda's considerations relate to the U.S. experience; however, in Europe, too, we can pinpoint historical forms of discrimination that have kept minorities in conditions of social and cultural subservience for centuries (for instance the Roma population and people from former European colonies now residing in Europe).

Gotanda contests the use of the notion of race in a formal sense and encourages that of "race in a historical sense" - which makes it possible to redress discrimination - and of "race in a cultural sense". The latter is a reminder that racial difference is a positive element, as it contributes to the promotion of diversity and creation of a pluralist society. Seen from this standpoint, therefore, race brings with it cultural richness.

This idea calls for the abandonment of the notion according to which race is linked to lineage or to an individual's somatic features. Instead, it is a culture and, as such, something that can be chosen by an individual who feels he or she belongs to a certain cultural universe. Gotanda's consideration is clearly connected with the theme of blackness and the claim to black identity. Here too Gotanda is referring to the history of the United States and the movements that developed there during the twentieth century. But again, one could argue that minority groups in Europe, as well, have made claims of belonging to specific cultural or "ethnic" groups for decades, increasingly so in recent years.

Another concept that is demolished by the notion of "race as culture" is that of the existence of "pure races": if "race" is "culture", then the pluralism of "races/cultures" cannot but lead to a mixed-race society, since cultures are not cages into which individuals are locked up once and for all, but "contaminate" one another and are in constant evolution.

This idea, which at first glance might appear abstract and artificial, originates instead from observation of the current dynamics in many contemporary societies, from that of the United States to European and South American ones. In Brazil, for instance, in states such as Paraíba, legislation has been passed to make it easier for blacks to go to university - legislation that is based on the individual option of belonging to the "black race ".

2. Structural discrimination

The notion of "structural discrimination" is usually used in contrast to that of "voluntary discrimination". Voluntary discrimination is that which is intentionally enacted by one party towards another, or by legal provisions aimed at creating discriminatory effects, while structural discrimination instead occurs irrespective of the will of legislators to discriminate, originating in the social system and the social circumstances of minority groups.

For a better understanding of this notion, it is useful to refer to a series of works by Pierre Bourdieu, from Les héritiers (1964) to La réproduction (written with Jean Claude Passeron in 1970) and La distinction (1979), up to the more recent La misère du monde (1993), in which he argues the importance of concepts such as economic, social and cultural capital for the analysis of social groups and individual behavior. These notions are connected with the concept of "habitus" upon which Bourdieu bases his sociological method. The habitus is "incorporated history", i.e. the result of the social conditions that characterize an individual, influencing his or her social behavior and self-perception. Domination is incorporated through the habitus: individuals comply with a set of social codes that they feel as their own, but which only serve to further their condition of subjugation. Yet Bourdieu's vision is not deterministic: such individuals use strategies that can even lead them to reject their state of subjugation and to overturn the relationship between dominator and dominated.

The notion of habitus is, as already mentioned, connected with that of "social capital". Bourdieu highlights how the state of dominator/dominated is not only generated by economic capital (the fact of having at one's disposition a certain amount of material goods), but also by the availability of other forms of capital: "cultural capital" and "social capital". Cultural capital is the body of knowledge (as well as the material goods related to culture) that an individual possesses, partly through acquisition and partly through inheritance. Since some types of knowledge are considered more important than others, those individuals able to inherit the former can, by way of the educational system (school, university), confirm and enhance their status as members of the dominating group. By the same token, those who possess greater social capital (i.e., the network of acquaintances and support that an individual can leverage on) have better opportunities of holding a dominating position.

The social positions of individuals are not only determined by the total amount of capital that they possess, but also by the structure of this capital: for instance, the availability of a large amount of economic capital, even though it is the form of capital into which all other forms can be converted, generally does not in itself provide access to jobs and managing positions in the public sector, where specific skills are required.

Migrants in Europe usually have little capital in any form whatsoever. Sometimes, however, they might have a certain amount of economic capital, or significant social capital made up of a network of relationships whose value is not appreciated by the native population. Also, the possession of economic capital, especially in societies like the European one, may not in itself allow migrants to escape their condition as subjugated parties. Likewise, we need only look at the educational levels of blacks in the United States to understand how precisely this dearth of (economic, but most importantly cultural and social) capital puts blacks in a condition of structural discrimination.

Referring to Bourdieu's sociology is therefore interesting, as it enables us both to give more precise boundaries to the notion of structural discrimination and to draw parallels between the considerations made by critical race theorists and those of European sociological theorists. Like critical race theory, Bourdieu's sociology aims at showing up the opposition between the dominator and the dominated in various fields of social life, i.e. to highlight relationships of domination.

In systems based on color-blindness, structural discrimination is not rectified since all individuals are believed to have access to the same opportunities. Being in the condition of dominator or dominated depends exclusively on an individual's capacity to acquire capital. Thus the color-blindness principle obscures the historical and structural effects of discrimination.

3. Discrimination in the U.S. prison system (4)

The prison system represents a very clear example of the discriminatory effects of color-blindness. In the United States there are 2 million and 130 thousand prisoners - a world record (726 prisoners for every 100,000 inhabitants). Many prisoners belong to racial minorities; more precisely, 49% of the prison population is made up of African-Americans, although blacks represent only 12-13% of the population (5). On any given day one in three African-American males between 20 and 29 years of age (32.3%) is either in jail or on parole or probation (in 1990 the proportion was 1 in 4). For whites - the majority in the country - this percentage is 1 in 15 (6).

Racial discrimination in the U.S. criminal justice and prison system is not a new phenomenon. It has been on the rise since the 1980s (since then, the number of black prisoners has trebled), at the same time that racism and the most explicit forms of segregation were being condemned by the majority of U.S. citizens. Many observers agree that "classic" racism in the United States is today at a historical low. The long struggle of blacks for their civil rights has made it possible for a large section of the African-American middle class to achieve a satisfactory degree of social integration, and there are symbolic rituals and public figures that present United States society as a multicultural society at peace with itself. Prisons and the judicial system operate in accordance with the color-blindness principle.

Yet to be black in the United States is still a serious social disadvantage: official segregation has disappeared, but for most African-Americans racial discrimination is an everyday experience. Numerous studies have tried to understand the reasons for the overrepresentation of African-Americans in U.S. prisons. It is partly due to forms of voluntary discrimination and partly to the very implementation of the color-blindness principle - a principle which has made it possible to adopt particularly strict criminal policies, with the end-result of penalizing minorities.

Blacks are more liable to undergo police controls and be arrested than whites. This is due partly to a higher rate of deviance among African-Americans and partly to discriminatory practices on the part of the police. Furthermore, the economic and social conditions of African-Americans favor their high rate of incarceration: blacks commit more crimes and lack the means to pay for an adequate defense or to enter programs alternative to detention. Lack of economic capital is one of the chief roots of black deviance.

Finally, some research has highlighted the unequal treatment of blacks and whites during criminal proceedings. Recent studies have shown that the race of the defendant and the victim contributes to determining the outcome of criminal proceedings. (7). At the federal level, for example, a black defendant is convicted for a longer period on average than a white individual charged with the same crime, whereas a Hispanic individual has a greater chance of being convicted than a white defendant in the same situation. This does not necessarily mean that court decisions are determined by racist attitudes towards minorities. The harsher treatment accorded to black and Latino defendants might also depend on the court's assessment of the danger they represent to society. This would seem to explain why the greatest disparity in the treatment of blacks and whites is to be found in convictions for lesser crimes. It is, however, difficult to determine whether such danger-assessments are neutral or influenced by prejudice and racial stereotypes. In this respect, it seems relevant to note that black defendants are not only punished more severely than whites, but are even more so when the victim of the crime is white. (8)

It is also important to mention data regarding death sentences. A study carried out by the Department of Justice showed that between 1995 and 2000 the U.S. Attorney General approved 159 proceedings for crimes punished by Federal public attorneys with the death penalty; 72% of these involved defendants who were members of racial minorities (9). Out of the 159 cases, 48% of those involving white defendants ended with a plea bargain that ruled out the death penalty. This solution applied to only 25% of black defendants, and 28% of Latinos. As to the race of the victims, the same study shows that, from 1995 to 2000, 36% of the death penalty proceedings authorized by the U.S. Attorney General involved a black defendant and a white victim, while only 20% of the cases involved both a black defendant and a black victim. Similar findings have been reached by studies analyzing death sentences pronounced by state courts.

However, it is the results of policies aimed at countering drug consumption and drug dealing that make it clear, better that anything else, why the number of Blacks and Latinos is so high in U.S. prisons. African-Americans and Hispanics represent about 90% of those sentenced to imprisonment in state prisons for possession of drugs (10). From 1983 to 1993 prisoners for drug-related crimes increased nationwide by 510%. African-Americans represent 13% of regular drug-users, yet 35% of arrests, 55% of charges, and 75% of sentences for drug detention involve the same population (11). It is therefore clear that specific criminal policies have contributed strongly to the increase in the percentage of black prisoners.

Michael Tonry polemically titled his essay on racial discrimination in the U.S. criminal justice system "Malign Neglect", in order to denounce the fact that advocates of "law and order" policies do not care about the negative impact on U.S. society of these policies, which worsen black discrimination. In Tonry's view, the negative effects of criminal policies in the 1980s were culpably underestimated by a ruling class looking for legitimacy. Policies were chosen consciously ignoring their discriminatory consequences.

Indeed, it was the color-blindness principle in public policy that made it possible to adopt policies with discriminatory effects such as the "war on drugs". From this standpoint, if blacks deal drugs more than whites, they must be punished, and the discriminatory effects are considered negligible since they are not intentional. The deliberate intention to discriminate is absent from "tough" criminal policies. Besides, in the majority of cases crimes committed by blacks involve black victims: crack-dealing plagues inner cities and makes life in African-American communities difficult. However, drug-dealing in inner cities is related to the social hardship and the discrimination suffered by blacks in all sectors of social life. It is not by chance that African-Americans themselves consider criminal policies to be one of the chief mechanisms of racial discrimination, without considering the fact that some legislative decisions hide a clear discriminatory purpose behind the classification of some crimes according to gravity, e.g. the distinction made by federal law and guidelines between possession of cocaine powder and possession of crack (12).

For the purpose of determining the duration of imprisonment, both federal law and guidelines for judges consider 1 gram of crack to be equivalent to 100 grams of cocaine, thus punishing the possession of drugs deriving from the same substance in a different way. This choice is undoubtedly due to considerations regarding the types of user of the two substances: cocaine powder is used in private venues, within close circles of acquaintances who purchase it through personal contacts, whereas crack is used and dealt on the streets. This difference affects the degree of disturbance that the illegal practice creates for the community, and the potential danger that the drug-users represent. However, it is also accompanied by the social and racial differences of users: crack is the drug of young blacks in inner cities, and cocaine powder that used by middle-class whites.

As in other fields, including that of criminal justice, "color-blindness" translates into discrimination-blindness. Some authors are much more severe than Tonry, arguing that "law and order" advocates knowingly promote discrimination. "Tough" social policies, in their view, are the new tools with which whites perpetuate the submission and exploitation of the African-American community. Loïc Wacquant considers mass imprisonment as the last of the "peculiar institutions" (13) through which black segregation has been perpetuated over the centuries (14).

The social consequences of this mass-imprisonment policy are heavy indeed. Consider, for example, the consequences of the imprisonment of parents on their children, who are left to fend for themselves. In the United States, 40% of black and Hispanic minors live under the poverty line (15); the single-parent structure of many African-American and Hispanic households is a contributing factor to this phenomenon. The presence of only one parent in the family - and hence only one income - is often due to the imprisonment of the other parent. Aside from the economic difficulty it brings for the family, this experience also produces severe psychological damage in children.

This situation has a number of consequences, and risks transforming the U.S. criminal justice system into a system that produces social instability.

4. Discrimination in European prison systems (16)

One of the main features of European prison systems is the significant presence of foreign or foreign-origin prisoners. Foreigners are overrepresented in the prisons of the main European countries. The average percentage of foreigners detained in European prisons exceeds 30% of the prison population, as compared with a presence of foreigners on the European territory that is around 7% of the population. The disproportion is evident, and reminiscent of the "racial divide" observed in the United States.

The percentage of foreign prisoners in the prison population is lower than the European average in some European countries of more longstanding immigration; however, in the prisons of those same countries there is a high percentage of "non-white" citizens who are the children of immigrant parents. European prisons do not distinguish this category of prisoners from that of native citizens, due to the understandable concern that such a distinction could have discriminatory effects. However, if on the one hand they act in a formally correct manner towards the citizens of foreign origin by following this policy, on the other they conceal a worrying fact: in many European countries a high percentage of prisoners is of foreign origin or nationality. Moreover, especially in northwestern European countries, they are of the Islamic faith and non-white.

Following the U.S. example, for statistical purposes the United Kingdom too has chosen to introduce ethnic categories in the classification of prisoners. Data have been gathered on the origins of prisoners since 2003. While statistics on the ethnic composition of the prison population are still being worked out, it is already known that of those individuals who entered public prisons between April 2004 and March 2005, those belonging to ethnic minorities numbered 26,043. Furthermore, out of the total number of people who entered prison for the first time in the same period, whites were 78%, blacks 12%, and Asians 6%, whereas 3% was of mixed origin and 1% belonged to not-otherwise-classified ethnic groups (17). This means that 22% of the people entering prison for the first time belonged to ethnic minorities. This figure, if compared with the composition of the U.K. resident population, indicates that "non-whites" are imprisoned much more than whites. In France, too, if the origin of prisoners were taken into account, the percentage of foreign and foreign-origin prisoners would probably be very high: Salvatore Palidda has argued that it would be higher than the percentage of African-Americans held in United States prisons. (18).

Prisoners of foreign nationality are particularly numerous in countries of recent immigration such as Italy and Greece, where they represent 31.8% (19) and 41.7% (20), respectively, of the total number of prisoners. The overrepresentation of foreigners is even greater with respect to women and minors. This phenomenon is particularly remarkable in Italy, where foreign women represent 42% (21) of the female prisoner population and minors imprisoned in young-offender institutions represent 47% of the total (22). Furthermore, the number of foreign minors entering these institutions continues to rise, with peaks reaching 80% in the prisons of central-northern Italy (23), compared with a progressive decrease in the number of Italian minors: with regard to this, Dario Melossi has argued that Italian young-offender institutions are going through a sort of process of "specialization" in handling foreigners (24).

It is clear that such a significant presence of foreigners in European prisons corresponds, at least partly, to a real level of deviance among immigrants. However, it is just as clear that the overrepresentation of foreigners in European prisons is due to more or less hidden forms of racial discrimination at all levels of the criminal justice system: from police practices, throughout proceedings, to the enforcement of sentences. This discrimination is only partially intentional: it is often the consequence of technical choices aimed at making police performance more efficient from a quantitative viewpoint, or due to specific features of a criminal justice and prison system designed for citizens - a system that has failed to adapt to the legal and social status of migrants, thus leading to the ongoing violation of their most elementary rights (structural discrimination).

The inability of many European judicial systems to treat migrants as they do other citizens seems a particularly serious form of structural discrimination. Federico Quassoli (25) has highlighted the discrimination practiced in proceedings against foreigners in Italian courts. A review of his survey shows how such discrimination is mostly involuntary and unwitting, and dependent on the specific life-conditions of migrants in the society to which they have migrated. The most illuminating example is the custom of not putting foreigners on probation. Such a practice, along with similar ones like not putting foreign prisoners on parole and not condemning them to other penalties in alternative to imprisonment, is one of the main reasons for the high number of foreigners held in European prisons. Yet the practice does not seem to be due to the fact that courts particularly mistrust foreigners as such, but because most foreigners do not fulfill the requirements necessary to allow these measures to be applied: for instance, they almost never have a fixed address. Particularly repressive laws such as the Italian law on immigration - the so-called Bossi-Fini Act - have worsened discrimination towards foreigners during proceedings and sentence-enforcement by providing for immigration-related crimes and "special" penalties for migrants (e.g. the crimes of illegal entry and re-entry).

Even if discrimination towards migrants is mostly of a structural nature or imposed by specific regulations, this does not justify practices which become a matter of routine and indifference towards individual cases. The assumption that it is difficult to obtain reliable information on foreign defendants and convicts often becomes a dogma that turns every immigrant into a document-forger with countless possible identities. The spread of this sort of phenomenon is symptomatic of the inability of European criminal justice systems and judicial institutions to provide sufficient protection to non-citizen defendants and convicts. For this reason, the denunciation of racist behaviors should not overshadow the need to carry out structural reforms and provide European judicial systems with the human and economic resources necessary for making them work properly also for migrants, whose appearance in courts cannot be considered anything exceptional.

(Translated by Maria Carla Bellucci and Sara Benjamin)


1. See Thomas Casadei's Introduction to this forum.

2. See in particular N. GOTANDA, A Critique of "Our Constitution Is Color-Blind", "Stanford Law Review", XLIV, 1(1991), 1-69.

3. See for example EUROPEAN UNION AGENCY FOR FUNDAMENTAL RIGHTS, Report on racism and xenophobia in the member States of the EU, 24th november 2005.

4. This paragraph is largely taken from L. RE, Carcere e globalizzazione. Il boom penitenziario negli Stati Uniti e in Europa, Laterza, Roma-Bari 2006.

5. M. MAUER, The Crisis of the Young African American Male and the Criminal Justice System, The Sentencing Project, Washington 1999.

6. M. MAUER, T. HULING, Young Black Americans and the Criminal Justice System: Five Years Later, The Sentencing Project, Washington 1995.

7. C. SPOHN, Thirty Years of Sentencing Reform. The Quest for a Racially Neutral Sentencing Process, "Criminal Justice", 3 (2000).

8. T. KANSAL, Racial Disparity in Sentencing. A Review of the Literature, The Sentencing Project, Washington 2005, especially page 11.

9. U.S. DEPARTMENT OF JUSTICE, Survey on the Federal Death Penalty Systems: 1988-2000.

10. J. AUSTIN, J. IRWIN, It's About Time, Wardsworth, Stanford 2001.

11. M. MAUER, T. HULING, Young Black Americans and the Criminal Justice System: Five Years Later, cit.

12. This distinction was established by federal mandatory sentencing laws voted in 1986 and 1988.

13. L. WACQUANT, Deadly Symbiosis: When Ghetto and Prison Meet and Mesh, "Punishment & Society", III, 1 (2000).

14. The other peculiar institutions are: slavery (1619-1865), the "Jim Crow" system (the Apartheid regime of the Southern States, 1865-1965), the ghetto (which could be found in all the cities of the Northern States since 1914 and until 1968).

15. J. AUSTIN, J. IRWIN, op. cit.

16. This paragraph is largely taken from L. RE, Carcere e globalizzazione. Il boom penitenziario negli Stati Uniti e in Europa, Laterza, Roma-Bari 2006.

17. HOME PRISON SERVICE, Annual Report and Accounts. April 2004-March 2005, London 2005.

18. S. PALIDDA, La criminalisation des migrants, "Actes de la recherche en sciences sociales", 129 (1999).

19. Ministero della Giustizia, at 31-12-04.

20. Greek prison administration, at 16-12-2004.

21. Worked out of the Ministero della Giustizia's data at 30-6-02.

22. Ministero della giustizia, first semester 2003.

23. Ivi.

24. D. MELOSSI, Stato, controllo sociale, devianza, Mondadori, Milano 2003.

25. F. QUASSOLI, Immigrazione uguale criminalità: rappresentazioni di senso comune e pratiche degli operatori del diritto, "Rassegna italiana di sociologia", 1 (1999).