The Criminal Legal System

• Pages: 451-485
• Author: Khiara M. Bridges

451

Chapter 19

THE CRIMINAL LEGAL SYSTEM

It is no overstatement to say that progressive race scholars have

written volumes about crime and, particularly, the nation’s responses

to it. This chapter will not attempt to explore this voluminous

literature in any great depth. Instead, it will describe the

interventions that critical thinkers have made in public and scholarly

conversations about just four issues concerning the criminal legal

system: mass incarceration, policing, generally, police killings of

people of color, and prison and police abolition.

I. Mass Incarceration

There are currently 1.83 million people housed in the country’s

prisons and jails.

1

By most measures, this number is remarkable. It

is remarkable because it means that the U.S. has the largest prison

population in the entire world. China comes in second, imprisoning

1.69 million people—over one hundred thousand fewer people than

the U.S.

2

The 1.83 million people presently housed in the nation’s prisons

and jails are remarkable when one thinks of the number in terms of

incarceration rates. The number translates to the imprisonment of

542 people for every one hundred thousand.

3

This rate towers above

the incarceration rates of the countries that the U.S. usually thinks

of as its peers. Indeed, the rate at which the U.S. incarcerates its

population is close to four times the highest rate of incarceration

among Western European nations.

4

Slightly more broadly, the U.S.

has the highest incarceration rate among industrialized nations:

Turkey is second, imprisoning 505 persons per every one hundred

thousand in the country.

5

1

World Prison Brief Data: United States of America, INST. CRIM. POL’Y RES.,

https://www.prisonstudies.org/country/united-states-america (last accessed Dec. 18,

2025). There are an additional 4.7 million people who are on probation or parole—a

status that significantly limits their freedom. See Becky Pettit & Carmen Gutierrez,

Mass Incarceration and Racial Inequality, 77 AM. J. ECON. & SOC. 1153, 1156 (2018).

2

World Prison Brief Data: China, INST. CRIM. POL’Y RES., https://www.prison

studies.org/country/china (last accessed Dec. 18, 2025).

3

INST. CRIM. POL’Y RES., supra note 1.

4

The United Kingdom has the largest prison population among Western

European countries, with 100,000 people. World Prison Brief Data: Highest to

Lowest—Prison Population Total, INST. CRI M. POL’Y RES., https://www.prison

studies.org/world-prison-data/highest-lowest/highest-lowest-prison-population-

total (last acces sed May 31, 2026). The United Kingdom also has the highest

imprisonment rate in Western Europe, with 145 per 100,000 people. World Prison

Brief Data: Highest to Lowest—Pris on Population Rate, INST. CRIM. POL’Y

RES., https://www.prisonstudies.org/world-prison-data/highest-lowest/highest-

lowest-prison-population-rate (last accessed May 31, 2026).

5

Id.

452

THE CRIMINAL LEGAL SYSTEM

Ch. 19

In fact, the 1.83 million people currently housed in the country’s

prisons and jails are remarkable when one compares the U.S. to itself.

In 1980—just a couple of decades ago—the U.S. imprisoned only five

hundred thousand people.

6

This means that in a relatively short

period of time, the prison population increased nearly four-fold.

7

The 1.83 million people currently housed in the nation’s prisons

and jails are remarkable when one considers that, in the assessment

of many critical scholars, the number does not bear a meaningful

relationship to crime rates. That is, many progressive thinkers have

observed that the country’s incarceration rates soared even during

periods when crime rates were decreasing. Philosopher and political

activist Angela Davis notes that when the U.S. began imprisoning

unprecedented numbers of people as part of the War on Drugs in the

1980s, it “had little to no effect on official crime rates. In fact, the

most obvious pattern was that larger prison populations led not to

safer communities, but, rather, to even larger prison populations.”

8

Indeed, sociologists Becky Pettit and Carmen Gutierrez, writing in

2018, noted that “although crime rates hover near their lowest level

in decades, the incarceration rate is three times higher than the rate

in 1980.”

9

While these numbers, in and of themselves, might be

disconcerting to social justice-minded individuals, they become even

more disturbing when the racial geography of the U.S.’s prison

population is considered: People of color, particularly black people,

are disproportionately represented among those who are presently

incarcerated. While black people constitute 14 percent of the U.S.

population, they constitute 41 percent of the prison population.

10

Thus, black people are dramatically overrepresented in the country’s

prisons and jails. Compare black people’s overrepresentation in the

prison population to the underrepresentation of white people: While

white people comprise 57 percent of the U.S. population, they

comprise solely 36 percent of the prison population.

11

Some scholars

have noted that while there are black-white racial disparities across

many areas of social life, the racial disparities in incarceration rates

are the worst. Critical race theorist Bennett Capers, for one, observed

6

World Prison Brief Data: United States of America, INST. CRIM. POL’Y RES.,

http://www.prisonstudies.org/country/united-states-america (last accessed Aug. 3,

2018).

7

Id.

8

ANGELA DAVIS, ARE PRISONS OBSOLETE? 12 (2003).

9

Pettit & Gutierrez, supra note 1, at 1154–55.

10

Wendy Sawyer & Peter Wagner, Mass Incarceration: The Whole Pie 2025,

PRISON POL’Y INITIATIVE (Mar. 11, 2025), https://www.prisonpolicy.org/reports/

pie2025.html.

11

Id.

Sec. I

MASS INCARCERATION

453

that in 2014, black-white racial disparities in unemployment were

two to one, black-white racial disparities in wealth were one to four,

and black-white racial disparities in infant mortality were two to one;

however, racial disparities in incarceration rates were eight to one.

12

These figures have piqued the ire of progressive race scholars

because they read the numbers as indicating that the U.S. is closer

to its racial past—when racial hierarchy and the mechanisms that

produced it were spectacular, obvious, and ordinary—than it is to a

future in which the country actually honors the commitments to

liberty and equality contained in its founding documents. Some

scholars observe that the U.S. incarcerates more black people now

than it did when Brown v. Board was handed down—during the

heyday of Jim Crow and formal racial inequality.

13

On a similar note,

legal theorist Michelle Alexander, whose work on mass incarceration

is explored more expansively in Part I.B., observes that the U.S.

currently “imprisons a larger percentage of its black population than

South Africa did at the height of apartheid.”

14

The extremely high rates of black incarceration mean that, in

many communities, it is not unreasonable for black people—

particularly black men—to anticipate going to jail at some point in

their lives. Alexander observes that in Washington, D.C., “it is

estimated that three out of four young black men (and nearly all

those in the poorest neighborhoods) can expect to serve time in

prison.”

15

On a national scale, one out of three black men should

expect to be incarcerated during their lifetimes.

16

Critical observers might find racial disparities in incarceration

rates less disquieting if they reflected the rates at which different

racial groups committed crime. Thus, if black people committed 41

percent of all crime, then we might be less disturbed by their

representing 41 percent of the prison population. However, there is

good evidence that incarceration rates do not reflect crime rates—at

least as it relates to drug crimes. Alexander’s work here is

particularly instructive. She writes, “Studies show that people of all

colors use and sell illegal drugs at remarkably similar rates. . . . That

12

I. Bennett Capers, Critical Race Theory and Criminal Justice, 12 OHIO ST. J.

CRIM. L. 1, 1–2 (2014). We might add that racial disparities in maternal mortality are

three to one. THERESA CHALHOUB & KELLY RIMAR, CTR. FOR AM. PROGRESS, THE

HEALTH CARE SYSTEM AND RACIAL DISPARITIES IN MATERNAL MORTALITY 1 (2018),

https://cdn.americanprogress.org/content/uploads/2018/05/09121820/HealthSystem

DisparitiesInMaternalMortality-Brief.pdf.

13

James Forman, Jr., Racial Critiques of Mass Incarceration: Beyond the New

Jim Crow, 87 N.Y.U. L. Rev. 21, 22 (2012).

14

MICHELLE ALEXANDER, THE NEW JIM CROW 6 (2012).

15

Id. at 6–7.

16

See id. at 9.