The federal government was designed by the framers of the American Constitution in the 18th century to protect minority rights. In the Civil Rights Era of the 1960s this role was deployed against white supremacy in the American South with decisive effect to ensure that first de-segregationist court decisions, and later Civil Rights legislation, did not founder on the shoals of local resistance. We are now in a the era of the “New Jim Crow”, as legal scholar Michelle Alexander calls it, an era in which black Americans are enmeshed in a legal caste system that criminalizes the intersection of poverty and skin color. This caste system outflanks Civil Rights and Voting Rights legislation by making exclusion no longer premised on skin color but on criminality.
Of course, this was always true to an extent, but criminal law and policing have themselves become implicitly racialized. New “crimes” often target the behavior of the poor and people of color. Reagan-era legislation, for example, imposed harsh federal sentences for the possession of crack cocaine, while imposing far more lenient sentences for powder cocaine. Locally, broken windows policing of “quality of life” crimes often specifically targets the poor and people of color by issuing fines for carrying open alcohol containers, street selling, or petty traffic violations. People who can’t pay become enmeshed in an institutional space in-between full citizenship and prison which tends to drag them towards prison.
In the meantime, ex-cons have lost the right to vote in most states. Clinton-era legislation severely weakened habeas corpus. The scope of probable cause has been significantly expanded to de facto include one’s mere presence in a given neighborhood and one’s race. At the same time, the civil rights of suspects and convicted felons have been severely reduced. Indeed, this year the Supreme Court validated the expanding scope of probable cause, prompting a scathing dissent from Justice Sonia Sotomayor, which lent considerable support to the arguments of Black Lives Matter activists. (LSE US Centre)