Civil Rights Legislation and Legalized Exclusion: Mass Incarceration and the Masking of Inequality

Abstract

Civil rights legislation in the 1960s promised greater racial equality in a variety of domains including education, economic opportunity, and voting. Yet those same laws were coupled with exclusions from surveys used to gauge their effects thereby affecting both statistical portraits of inequality and our understanding of the impact of civil rights legislation. This article begins with a review of the exclusionary criteria and some tools intended for its evaluation. Civil rights laws were designed at least in part to be assessed through data on the American population collected from samples of individuals living in households, which neglects people who are unstably housed, homeless, or institutionalized. Time series data from surveys of the civilian population and those in prisons and jails show that growth in the American criminal justice system since the early 1970s undermines landmark civil rights acts. As many as 1 in 10 black men age 20–34 are in prison or jail on any given day, and in the post–Great Recession era, young black men who have dropped out of high school are more likely to be incarcerated than working in the paid labor force. Our findings call into question assessments of equal opportunity more than half a century after the enactment of historic legislation meant to redress racial inequities in America.