Carceral Apartheid: Centering State Responsibility for the Racial Order

Racial harms are often attributed to private ordering. But the power of White communities to subordinate communities of color is not a constellation of private acts independent of state violence. When scrutinized, acts of racial exclusion, segregation, and violence persist to the extent they are aligned with the political order and backed by the state’s violent guarantee. The knowledge that any resistance to these acts will be met with state retribution bristles in the background. There are different ways in which state violence produces and reproduces the racial order: (1) direct violence; (2) a violent guarantee backing communal acts of racial harm; (3) a violent guarantee backing the distribution of government benefits to White beneficiaries; and (4) extralegal violence. In contrast to legal doctrine that erects a false wall between state action and private ordering, this typology helps reveal how state violence is a precondition to acts of racial harm. To illustrate how these four categories of state violence function, this Article turns to the criminal system. A historical examination surfaces an unbroken record of carceral violence essential to the perpetration of “private” acts of racial harm. This understanding—that state violence is a precondition to acts in furtherance of the racial order—introduces a view of state action that would authorize proactive federal interventions to dismantle the racial order. Erasing state responsibility for the racial order has been an uninterrupted project of White supremacy since slavery. This Article’s proposed typologies assist in efforts to demonstrate state culpability and provide a path forward for acknowledgment of racial harm, accountability, repair, and reparation.