Prison Abolition: Empathy That Isn’t Possible in White Supremacist America
By: Marcello Rivers
Tags: Death Penalty, Human Rights, Race, Prison Abolition, White Supremacy

Prison Abolition: Empathy That Isn’t Possible in White Supremacist America

Prisons in the United States have a brand of evil that has been kept alive by white supremacy and capitalism for hundreds of years. Marcello Rivers Dec 11, 2020·16 min read

Photo:The Tulsa Star

In 1999, Brandon Bernard, eighteen years old at the time, joined four other Black teens in what he thought would be the carjacking and robbery of Todd and Stacie Bagley, a white couple, both youth ministers in Killeen, Texas near the military base Fort Hood. The boys put the couple in the trunk of their car and drove to multiple A.T.M.s and a pawnshop. At some point, Bernard joined in, and the group’s leader, a nineteen year old named Chris Vialva, decided to shoot and kill the Bagleys, he shot both of them at point blank range, killing Todd and rendering Stacie unconscious. Vialva used a gun that Bernard provided, while Bernard had always maintained that he thought the gun would only be used to scare people and had no intention of killing anyone. After the murders Vialva ordered that the car be burned, so Bernard and another boy went to buy lighter fluid with the intention of burning the car. That boy testified that Bernard lit the fire, causing Stacie to die of smoke inhalation. Bernard has said in court filings that he helped burn the vehicle, but he thought that the couple was already dead. The three minors involved were sentenced to between twenty and thirty-five years in prison, two of them have already been released. The government decided to prosecute Bernard and Vialva as adults, and tried them in the same trial, something that jurors today found odd considering the level of Bernard’s involvement as compared to Vialva’s. The jury heard unified evidence, despite the difference in the actions of the two, and the contrasting attitudes as Vialva seemed stoic and showed no signs of remorse, while Bernard seemed frightened and remorseful. The presiding judge, a Reagan appointee who resigned in 2016, while under investigation for sexual harassment, assigned Bernard a lawyer who had no previous federal death-penalty experience and failed both to call key character witnesses, which included Bernard’s probation officer, and to investigate mitigating evidence of childhood trauma; the attorney logged only a fifth of the hours usually spent to prepare for a federal death-penalty case. Prosecutors were allowed to call a forensic psychiatrist named Richard Coons, who referred to himself as a “future dangerousness expert” only for Texas courts to later deem him unreliable. Coons testified that gang members like Vialva and Bernard were more than likely to join a gang in prison and that prison would only make them more violent over time, making the argument that they were too dangerous to serve life in prison, this led the jury to condemn them to death. In 2020, five of the surviving jurors since then have all stated they believe Brandon’s death sentence should be overturned to life in prison. According the Intercept:

“Afterward, McClung questioned his decision. He was particularly bothered by Bernard’s death sentence. It was Vialva, after all, who’d shot the Bagleys at close range as they lay inside the trunk of their car. Bernard was not even present when the couple was abducted. “Brandon Bernard, during the trial, he seemed to me to be pretty broken, to be very much afraid,” McClung said. He never understood why the two had been tried as a pair. “There were times that I purposely probably didn’t dwell on it,” McClung said. “But it would come back to mind.” He wondered if there was anything he could do, “somebody to contact and at least put a voice in after the fact,” he said. “But it just seemed too late.” In 2015, however, McClung got a call from Bernard’s legal team, which was contacting jurors as part of a post-conviction investigation. By then McClung had moved his family to Tennessee, where he was working as a welder. In 2016, two investigators came and interviewed him on tape at his workplace. “I have for a long time wanted, wished for an opportunity like this,” McClung said. He expressed sorrow for the Bagley family. “I can’t imagine what they’ve gone through. I just would not want to see Mr. Bernard, who I don’t believe had any intention of killing anyone, have to die for this.”

In 2016, Bernard’s defense team submitted Bernard’s clemency petition but Obama never acted on, having only ever commuted 2 death sentences before leaving the White House. Once Donald Trump took office he resumed federal executions after the cruelty of capital punishment had taken a 17 year hiatus. Bernard was executed yesterday night December 10th at 9:27PM, after a refusal to stay the execution by the US Supreme Court. Perhaps the more sickening piece of evidence is that Brandon took no part in murdering anybody. Dr. Stephen Pustilnik, chief medical examiner in Galveston County, Texas, reviewed the autopsy records of Stacie Bagley and came to the conclusion that “Even if Mrs. Bagley was medically dead after sustaining this gunshot injury, physicochemically driven autonomic functions were taking place for some period of time,” and Stacie Bagley’s death was a “forgone conclusion”, even before the fire was set. A huge factor in Brandon’s sentencing were the autopsy reports, which prosecutors used to mislead the jury and give the impression that Stacie could have survived the gunshot if the fire had not been started. This new evidence is what lead the jurors years later to support clemency for Brandon, yet he was never granted it, and instead executed by the government. The Trump administration plans to execute 4 more people before the Biden presidency begins, 3 out of 4 of the people to be executed are Black men, not a coincidence as the prison system and the death penalty prey on black men who are often innocent or intellectually disabled, which of course is illegal in the United States, but colonial law seems to not apply to you if you are Black in the United States, as prisons and their evil acts of violence are rooted in white supremacist and anti-Black violence.

Photo:The Intercept

Since America’s founding there have been and continue to be stories of crime waves or criminal behavior and then patterns of disproportionate imprisonment of those on the margins of society: Black people are the ones most systematically affected by this, then Native Americans and immigrants follow. The result has been the disproportionate and growing impact of incarceration on these groups. From 1850 to 1940, racial and ethnic minorities made up 40 to 50 percent of the prison population. In 2015, about 55 percent of people imprisoned in federal or state prisons were Black or Latino. This racist and anti-Black violence has been going on for hundreds of years. In 1865 after the end of the Civil War and the passage of the 13th Amendment, the nation’s first prison growth happened when the number of Black people getting incarcerated surged. This was the result of state governments reacting to white public fear about crime being increased and coming from newly freed Black people. This was also a result of the economic depression the country faced after funding a war and could not use free slave labor anymore, so the government found a new way to enslave Black people and make money off of it that was completely legal in the eyes of America, prison labor. All across the South, Black Codes were passed that outlawed behavior common to Black people in the scope of white supremacist America, things such as “walking without a purpose” or “walking at night” would land a Black person in jail. These laws, which are still upheld today, stripped people who have been previously incarcerated of their citizenship rights for their entire life after their sentence is completed. Law enforcement targeted Black people and increased numbers of them into the state prisons. By the 1870s, 95% of people incarcerated in Southern state prisons were Black.

State authorities forced these newly freed Black individuals to rebuild the South, they rented out incarcerated people to private companies through a system of convict leasing and put incarcerated people to work, back in the late 1800’s convict leasing was mainly a tool for free agricultural labor through convicts labor. Although Industrialization caused political and economic changes in the United States that contributed to the end of private companies leasing convicts by 1928, legal slavery still continued and even more cruel practices such as the chain gang, a brutal form of forced labor in which incarcerated individuals were bound by their ankles to do public works, those sentenced to serve on chain gangs, as is with most cruel forms of state prison violence, were predominantly Black. Prison farms and agriculture dominated the industrial complex as well, by 1928 Texas had 12 prison farms and nearly 100 percent of those incarcerated and working on them were Black.

The 13th amendment contained a loophole that the US government exploited, which abolished slavery and indentured servitude except for when serving punishment for a crime, this allowed the government and states to create policies that could incarcerate Black people simply for existing, and then exploiting their labor for free through inhumane actions, such as chain gangs. Very few white men and women were ever sent to work under these arrangements. By assigning Black people to work in the fields and on government works, the state-sanctioned punishment of black people was visible to the public allowing for crime waves associated with race narratives to be spread even though completely false, while white punishment was behind prison walls never in the view of the public eye. By many accounts, conditions under the private convict leasing system were harsher than they had been under slavery, as these companies no longer had an ownership interest in the longevity of their slave laborers as they were provided to them for free by the state rather than having to pay for them, making enslaved Black people even more subject and replaceable under white supremacist state violence than before.

Photo:The Conversation

By the 1960s at the height of Jim Crow, a “law and order” rhetoric with anti-Black undertones emerged in politics all across America, which ushered in the era of mass incarceration and changed the racial composition of prisons in the United States from majority white at 1950 to majority Black by the 1990s. In 1965, President Lyndon Johnson declared a “War on Crime,” and perceived increases in crime from urbanized parts of America, majority Black areas, became connected with Blackness in the white public’s consciousness. In 1970, the state and federal prison population was 196,441. By 1985, it had grown to 481,616. in 2008, federal and state correctional authorities had jurisdiction over 1.6 million people. Prisons are overcrowded and services and amenities for incarcerated have people diminished, with over 2.3 million people incarcerated across the United States, the majority of them being Black. The prison industrial complex has resulted in the following:

Black people being incarcerated in state prisons at a rate that is 5.1 times the imprisonment of whites. In five states (Iowa, Minnesota, New Jersey, Vermont, and Wisconsin), the disparity is more than 10 to 1.

In twelve states, more than half of the prison population is Black: Alabama, Delaware, Georgia, Illinois, Louisiana, Maryland, Michigan, Mississippi, New Jersey, North Carolina, South Carolina, and Virginia. Maryland has the highest disparity with 72% of the prison population being Black.

In eleven states, at least 1 in 20 adult Black males is in prison.

In Oklahoma, the state with the highest overall black incarceration rate, 1 in 15 Black males ages 18 and older is in prison.

The Bureau of Justice Statistics reports that 35% of state prisoners are white, 38% are Black, and 21% are Hispanic.

A 1986 crime bill orchestrated by Joe Biden had authorized for more funding on the War on Drugs and harsher penalties, the penalty for crack cocaine, a drug introduced to primarily Black communities by Ronald Reagan to fund the fascist Contra army in Nicaragua, was much more severe than the penalty for powder cocaine, a drug primarily used amongst upper class white people

The passage of the Violent Crime Control and Law Enforcement Act of 1994, also known as the crime bill. The bill introduced a 3 strikes policy law, which impose automatic life sentences for people convicted of certain felony offenses if they already have two convictions on their record. Many states followed and enacted three-strikes policies, resulting in an increase of incarceration in certain states, especially for Black and Latinx Americans. The bill also expanded the school-to-prison pipeline and increased racial disparities in juvenile justice, this particularly targeted Black youth.

The prisons themselves seem cruel enough but America always finds ways to further punishments of the marginalized, especially Black colonized subjects, this is where evil state policies such as the death penalty were introduced. According the the ACLU:

“The color of a defendant and victim’s skin plays a crucial and unacceptable role in deciding who receives the death penalty in America. People of color have accounted for a disproportionate 43 % of total executions since 1976 and 55 % of those currently awaiting execution. A moratorium of the death penalty is necessary to address the blatant prejudice in our application of the death penalty. While white victims account for approximately one-half of all murder victims, 80% of all Capital cases involve white victims. Furthermore, as of October 2002, 12 people have been executed where the defendant was white and the murder victim Black, compared with 178 Black defendants executed for murders with white victims. In January 2003, researchers at the University of Maryland concluded in a study commissioned by the Maryland Governor that defendants are much more likely to be sentenced to death if they have killed a white person. In the fall of 2000, The U.S. Department of Justice (DOJ) released the results of an initial survey of federal death penalty prosecutions. The report shows that the federal death penalty, like its application in the states, is used disproportionately against people of color. Of the 18 prisoners currently on federal death row, 16 are either African-American, Hispanic or Asian. From 1995–2000, 80% of all the federal capital cases recommended by U.S. Attorneys to the Attorney General seeking the death penalty involved people of color. Even after review by the Attorney General, 72% of the cases approved for death penalty prosecution involved minority defendants. The DOJ study also revealed the influence that the race of the victim has in determining potential capital cases. U.S. Attorneys recommended the death penalty in 36 % of the cases with Black defendants and non-black victims, but only recommended the death penalty in 20 % of the cases with Black defendants and Black victims.

This isn’t the only form of anti-Blackness in the capital punishment system, not only are Black people disproportionately put on death row and sentenced to it, but lots of Black people sentenced to death row turn out to be completely innocent of the crime they are convicted of. According to the Innocence Project:

“On Sept. 21, 2011, the state of Georgia ended Troy Anthony Davis’ life with a lethal injection. Davis was executed for the murder of a police officer, a crime he always maintained he did not commit. In the months before his execution, people around the country urged Georgia to reconsider in light of the serious doubts about his guilt, including the fact that seven out of nine witnesses recanted their testimony against him. Despite calls to stay his execution from politicians on both sides of the aisle, the NAACP, the Innocence Project, and Amnesty International, the State moved ahead with Davis’ execution. Unfortunately, there have been several Troy Davis’s in the nine years since his execution, and the struggle for justice is far from over. Since 2011, dozens of men sentenced to death have been exonerated — most of them Black men wrongfully accused of murder — according to data from the National Registry of Exonerations. In fact, innocent Black people are seven times more likely to be wrongfully convicted of murder than innocent white people, the National Registry of Exonerations reported. These wrongful convictions are just the ones that have been discovered. But it’s likely that many more people with claims of innocence are currently on death row, like Pervis Payne, a Black man living with an intellectual disability, who has been on death row in Tennessee for 33 years for the murder of a white woman, a crime he’s consistently said he did not commit. Even though 21 states have now abolished the death penalty, those which continue to use capital punishment do so in ways that are inextricably linked to and exemplify the United States’ deeply rooted history of racism. A new report from the Death Penalty Information Center (DPIC) shows that the states with the highest incidences of lynchings of Black people between 1883 and 1940, are largely the same states that have executed the most Black people over the last 50 years.”

Lynchings never stopped, the government just found a way to make them legal by creating unjust laws in the justice system to condemn Black men to state executions, many have died and found to be innocent after they have been murdered. The death penalty started as and always will be a form of anti-Black violence that continues to uphold colonial law that isn’t even exempt from children, as George Stinney, a 14 year old Black boy was electrocuted to death after being convicted of killing two white girls, he was murdered by the state on the basis of a false confession that the police coerced from him. White supremacist state violence will always continue under the American prison system and this is what prison abolitionists are fighting against to put an end to the legacy of colonial terror and the way we perceive the actions of colonized subjects under colonial law.

Photo:”Are Prisons Obsolete?” by Angela Y. Davis

Abolition is necessary because only by organizing for abolition can we fill out our vision of what it’s going to look like and how it’s carried out. Abolition is about undoing our dependence and need on punishment and violence to view and judge individual behaviors and social structures to create a new society that prioritizes rehabilitation. Embracing and finding out new systems to organize and go about our lives is part of what abolition is about. In order to achieve this we have to embrace the fact that abolition is going to mean changes that seem unimaginable at this point in time because of the American system of white supremacist colonial law and societal structure, these changes will affect nearly every part of our lives, so when we imagine what a world with abolition would look like, we have to imagine a world completely different from our own and outside the colonial structure of society we have become accustomed to. Prisoner activists and abolitionists have been challenging these notions of punishment and judgment for years. In the 1970s, many prisoner activists and their supporters fought for the end to indeterminate sentencing. Sentences like “1 year to life” gave prisons complete control over a persons life and when they could go home, nothing law binding, simply up to the decisions the state has deemed worthy of judging an individual. Court ordered determinate sentencing was a big push in reform, as it diminished the racism that kept Black prisoners from ever being released no matter their conviction or behavior while incarcerated. However, determinate sentencing paved the way for mandatory sentencing and even harsher policies like the 3 Strikes Policy were implemented in order to maintain the slave prison labor the system relied on. In her book “Are Prisons Obsolete?” Angela Davis challenges the notion that prisons are to inhabit criminals as a result of their crimes, but rather house slaves as a result of the privatization of prison labor, shifting the concept of prison sentences being based on time to being based upon money to further the American capitalist system. Davis states:

“Moreover, the prison sentence, which is always comput­ ed in terms of time, is related to abstract quantification, evoking the rise of science and what is often referred to as the Age of Reason. We should keep in mind that this was precisely the historical period when the value of labor began to be calculated in terms of time and therefore compensated in another quantifiable way, by money. The computability of state punishment in terms of time — days, months, years — resonates with the role of labor-time as the basis for computing the value of capitalist commodities. Marxist the­ orists of punishment have noted that precisely the historical period during which the commodity form arose is the era during which penitentiary sentences emerged as the primary form of punishment. Today, the growing social movement contesting the supremacy of global capital is a movement that directly chal­ lenges the rule of the planet — its human, animal, and plant populations, as well as its natural resources — by corporations that are primarily interested in the increased production and circulation of ever more profitable commodities. This is a challenge to the supremacy of the commodity form, a rising resistance to the contemporary tendency to commodify every aspect of planetary existence. The question we might consider is whether this new resistance to capitalist global­ ization should also incorporate resistance to the prison.”

The growing movement prison of abolition is needed to challenge the state sanctioned violence that America has placed upon Black people and all marginalized peoples, and that includes all the twisted acts of anti-Black violence deemed acceptable by the government, including the death penalty. Abolition is the key to making sure tragedies like Brandon Bernard never happen again, may he rest in peace.