Evidently, the history of the unequal treatment of African American’s before the law is both long and increasingly devious in its legal constructions. To argue that the historic oppression of African American’s is no longer relevant in the modern day would be ignorant. It is important to realise that the very foundations of the law has always undermined the rights of African Americans and the effects of this history remain evident not only in the justice and legal systems but in society.
The American government has used the legal system as a means to formalise the discrimination against African Americans within the justice system. However, this inequality is not limited to the way they have been historically treated by the law but also in how it has been maintained in the modern world. In the post-Civil Rights era, the blatant racism of the Jim Crow south is no longer acceptable. However, the oppression of the African American has taken on new forms of what Johnson refers to as “racialisation” (2011; 301). Racialisation is described by Johnson as “a structure for continuing social stigma and economic marginalisation by race”. Through racialisation, society has successfully developed a system that disadvantages African Americans by keeping them in positions where justice can be difficult to access. This concept is what Massey and Denton refer to as ‘The American Apartheid” (1993; 135).
While modern America has abolished the policy of segregation, there still exists a residential segregation of the races heavily influenced by the economic division of the races (Massey and Denton; 1993; 138). Following the emancipation of the slaves and the subsequent establishment of Jim Crow Laws, “ghettos” began to form. Massey and Denton argue that “black communities” (1993; 136) are structured to reinforce the segregation of the African American community from white America. It is these communities that preserve the inequality established by the long history of lawful discrimination. Through this structure, African American citizens are left with “a social environment where poverty” is the norm (Massey and Denton; 1993; 136) as according to Walker, Sphon and DeLone the unemployment rate for African Americans in 2010 was 50% (2012; 99). By marginalising African American communities and keeping them in poor socio-economic situations, it is more difficult for them to have access to justice. Not only is it unlikely they will be treated in a fair manner in a court of law as history has shown, but they will also be unable to have the necessary funds to access legal aid.
In the modern era, a new racial stereotype of the African American has been created. Alexander argues, that the systematic discrimination ensured by the American justice system leads to the need for a living to be made from criminal or deviant behaviour (2012). This idea of a dependence on crime as a means to an end has become so prevalent that Pettit and Western cite it as a part of the African American “life course” (2004; 154). The common association of the African American community collectively condemns African Americans as a deviant minority group. This can be attributed to Becker’s labelling theory (1963), which argues that deviance is a result of how others respond to the crime. In creating a system of social and economic marginalisation, African Americans are stigmatised with a new label: deviant. While slavery and legal segregation are no longer formally legalised, a “new Jim Crow” (Alexander; 2012) is rising suing a different name: mass incarceration.