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Let's Talk Human Rights

Law Student Insights on Critical Race and Feminist Legal Theory Series (Part 2)

By Damek P. Mitchell, UDSL 2L


In the Fall of 2022, law students were introduced to Critical Race Theory and Feminist Legal Theory taught by Dr. Satang Nabaneh. During the course of the semester, they learned about the concepts and critically reflected on how to utilize these critical lenses to effect social justice through legal institutions. This series captures some students' reflections on key legal and social issues. 

The gendered racism in mass incarceration and police violence against Black men and boys

Slavery still exists in America. The 13th Amendment to the U.S. Constitution  was ostensibly drafted to eliminate slavery but came with an exception. After banning “slavery or involuntary servitude,” it adds, “except as a punishment for crime whereof the party shall have been duly convicted.”[i] The problem with this language is that being “duly convicted” has nothing to do with the principles of justice in a nation where new Black Codes (like those that existed during Jim Crow) replaced the old Slave Codes. 

After the breakdown of Reconstruction, new laws were passed throughout significant parts of the country to keep Black freedmen and women confined to the former plantations under a sharecropping system with the same racial hierarchy that existed during slavery. These “infamous pieces of legislation” criminalized everything from being unemployed while Black to loitering while Black.[ii] Around 9/10ths of Southern court cases involving Black defendants resulted in them being condemned to life as convicts forced to labor on chain gangs.[iii] In 2022, 35% of the two million people imprisoned in America were Black men.[iv] There exists a direct link between the American systems of slavery, forced convict labor and the modern mass incarceration of Black men. The prison labor industry brings in over $11 billion every year, while the Black men who are forced to fuel this industry receive little to no pay.[v] Furthermore, traditional data on the economic situation of Black men often excludes the incarcerated. When the wages of incarcerated Black men are included, Black men in the U.S. make even less than Black women on average.[vi]

For every 100,000 Black men in the U.S., there are 2,203 that are incarcerated. The stats for Latino men is 979 incarcerated for every 100,000, while it is 383 out of 100,000 for white men. For women, 83 out of 100,000 are Black, 63 out of 100,000 are Latina and 48 out of 100,000 are white. It is clear that the specific type of violence and racism associated with incarceration and 21st-century forced labor in the U.S. is split along both racial and gendered lines.[vii]

At this intersection of race and gender, being a male of the non-dominant racial group is not viewed as an advantage but as a threat to the dominant order. Many feminist frameworks fail to encompass the realities of mass incarceration and police violence against Black men and boys as gendered racism. This is not to say that Black women don’t experience some of the worst forms of gendered racism or that they also are not impacted by incarceration and police violence. However, the impact of these particular forms of racism bear overwhelmingly on Black men. As social psychologists Jim Sidanius, Felicia Pratto, and Shana Levin explain in their Social Dominance Theory, men of non-dominant racial groups are the primary targets for the most “extraordinary levels of violence” by coalitions of “dominant males.” This reflects how gendered ideas in society attribute violence and dominance to real masculinity and weakness and subjugation to femininity. In Black Sexual Politics: African Americans, Gender and the New Racism, Professor Patricia Hill Collins makes a similar argument by describing how racism is manifested differently based on gender. After witnessing the way in which two innocent Black boys were physically beaten by a white usher at a movie theater, Professor Collins noted that “The boys were harmed because they were young, Black, and male—the usher would not have dared to grab in the same fashion the irate middle-aged Black woman complaining about the assault.”

In her article Gender, Violence, Race, and Criminal Justice, Professor Angela P. Harris argues that within the criminal justice system, racism against Black men and boys is also a gendered issue. She begins with the story of Abner Louima, a Haitian immigrant who was sodomized with a broomstick by white NY police officers. After raping Louima and leaving him to bleed out in his cell, the officers brandished the feces-stained stick around the station like some kind of trophy to impress their coworkers.[viii] Professor Harris goes on to discuss the ways in which Black men and boys are overwhelmingly targeted by law enforcement and how feminist theorists, who tend to focus on gendered violence as it relates to women, are missing the ways in which gendered violence also impacts Black men and boys. Professor Harris notes that “gender violence does not produce only female victims; indeed since most victims of violent crime are male, it may be that more men than women suffer from gender violence.”[ix] In 2019, as part of their infamous “Stop & Frisk Program”, the NYPD stopped and searched 8,297 Black men and only 17 Black women.[x] These stops often involved humiliating pat-downs where white male officers sexually assaulted Black men by forcibly fondling and battering their genitals. For example, in 2014, Philadelphia police crushed the testicles of a Black 16-year-old high school student named Darrin Manning.[xi]

Such gruesome examples demonstrate the ways in which the U.S. criminal justice system has historically used specific forms of gendered violence in its quest to try and demonstrate white dominance over non-white people. While Black women are also the victims of police violence, as illustrated by cases like Sandra Bland and Breonna Taylor, the overwhelming majority of this particular form of racism is directed at Black men. After all, modern policing evolved from the slave patrol system, where all whites were deputized with authority to hunt down and kill Black runaways.[xii] Strikingly, 81% of the runaway slaves from the states of Virginia, North Carolina, Tennessee, South Carolina and Louisiana in the period of 1790-1860 were young, Black men. While enslaved Black women desired freedom just as much as their male counterparts, they were less likely to run away because many of them had already begun raising children by their late teens and early twenties.[xiii] In 2018, of the 229 Black people murdered by U.S. police, 219 were Black men and 10 were Black women. In 2019, 236 Black people were murdered by U.S. police, with 230 being Black men and 6 being Black women.[xiv] The gendered breakdowns in these stats illustrate the ways in which the state continues to be used to target Black men with the most overt forms of physical violence.

Without understanding how gender works in society to oppress men as well as women, some may think that gendered racism is specifically a women’s issue and that the racism which Black men experience is solely based on their race. Yet, the disproportionate realities of the U.S. prison population and the numbers of police murders show that more than just race is at play. Just as the intersectional framework is applied to Black women and girls to analyze the unique forms of gendered racism which they experience, so too should it be extended to the unique struggles that Black men and boys face in a white-male-dominated society. In the U.S., being both Black and male marks one as a target for increased forms of state-sanctioned gendered racism.



[i] 13th Amendment, U.S. Constitution.
[ii] Du Bois, W. E. B. (1992). Black Reconstruction In America 1860-1880.The Free Press, NY, pg. 166-167.
[iii] Id. at 696.
[iv] Wagner, Peter, and Wendy Sawyer. “Mass Incarceration: The Whole Pie 2022.” Prison Policy Initiative, March 14, 2022.
[v] Rai, Sarakshi. “US Prison Workers Produce $11b Worth of Goods and Services for 'Little to No Pay at All'.” The Hill. The Hill, June 15, 2022.
[vi] Pettit, Becky (2012). Invisible Men: Mass Incarceration and the Myth of Black Progress. pg. 53, 67.
[vii] Duffin, Erin. “U.S. Incarceration Rate by Race and Gender 2019.” Statista, November 11, 2021.
[viii] Harris, Angela P. (2000). Gender, Violence, Race, and Criminal Justice. pg. 778.
[ix] Id. at  pg. 779
[x] NYPD 2019. Stop, Question and Frisk database.
[xi] Murphy, Carla. “Phila. Teen Claims Stop-and-Frisk Led to Injured Genitals.” Colorlines, January 21, 2014
[xii] “Gradually the whole white South became an armed and commissioned camp to keep Negroes in slavery and to kill the black rebel.” Du Bois. Black Reconstruction In America 1860-1880 at pg. 12
[xiii] Franklin, John Hope; Schweninger, Loren (1999). Runaway Slaves: Rebels on the Plantation. Tables 3 and 4 from pg. 211-212 on Gender of Runaways by State.
[xiv] Washington Post, Fatal Force 2019.

Damek P. Mitchell is a second year law student born and raised in Louisville, KY. As an undergraduate at the University of Notre Dame, he majored in African History and worked as a research assistant focusing on the effects of British colonialism in Kenya. Damek’s motivation for attending law school is to pursue a career in Civil and Human Rights Law, particularly in connection with securing justice for Black people. Last summer, Damek interned with the City of Dayton Human Relations council doing legal research and aiding in the investigation of housing, employment, and public accommodation discrimination claims. The subject of this blog is of particular importance to him as someone who has personally experienced police violence directed against Black men and as someone who has lost family members and friends to police violence directed against Black men.

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