Oppressing Marginalized Communities: a Comparison of the American and Israeli Incarceral Systems

by Rund Khayyat ’21

I attended Zoom arraignments during my first week in the Criminal Justice Institute (CJI), and what struck me most was the cases of the teenagers, all Black, who were undergoing their first interactions with the criminal system. One Black teenager appeared in court with his mom, and told the judge and prosecutor that he had been doing better in school, bettering his relationship with his mom, and that he had accepted a new job at Popeye’s.

The prosecutor stressed to the teen that she was proud of his improvement – and then apologized that she would soon be hitting him with very serious charges. The judge, similarly, expressed regret that the teenager would likely face serious jail time, but nonetheless encouraged him to pursue school in the meantime. “Remember, school is the best source of social and economic mobility,” she told him pointedly. In other words, the judge knew that the teenager grew up in poverty, and that a multitude of socioeconomic factors likely contributed to his presence in the courtroom that day.

It was obvious that the players in the room, all white, knew the jail sentence would doom that teenager. It is well documented that the U.S. imprisons more young people at a higher rate than any other nation, and that incarcerating juveniles only reduces their educational attainment, diminishes their social capabilities, and increases the probability of incarceration later in life. Yet, the judge and prosecutors played their roles, and funneled the Black teenager through the system.

The arraignments reminded me of Palestinian children facing their own arraignments in the Israeli military system in the West Bank. There, all the players in the room are Israeli, except the Defendant child and defense attorney, and the entire process is conducted in Hebrew, which the child does not speak. The child is similarly funneled through the court system — Palestinian children face conviction rates of over 99% in Israeli military courts. Moreover, Palestinian children in the West Bank are subject to Israeli military law, while Israeli settler children remain under the civil legal system.

In CJI, we constantly reflected on how the system unjustly oppressed our clients of color, but that we had to participate within it — such as by negotiating plea agreements for bogus charges — in order to limit harm to our clients. These conflicts are reminiscent of the experiences of attorneys who represent Palestinian children, particularly before military courts. Palestinian defense lawyers are aware of the dilemma that the system is unjust and they, as cogs, are part of it, by granting it the illusion of legitimacy. Nonetheless, Palestinian lawyers play an important role in providing psychological support and a sense of dignity to their clients, even though they can rarely change their legal outcomes.

Through CJI and the Human Rights Clinic, I have drawn connections between the experiences of marginalized minority groups, with a focus on the use of incarceral systems to confine and undermine those populations. I have seen the way that majority-group driven systems insert themselves into Black and Brown lives and wreck mayhem, particularly for juveniles, in the name of “justice,” “public safety,” and “security.” I have seen how the word “crime” is a construct, how policing intersects with systemic racism, how the imposition of prison into people’s lives is destructive, and how we have lost sight of humanity in the law.

Arabs in Israel, and Black communities in the U.S., are subject to similar systems of mass incarceration and systemic discrimination. Both incarceral states are grounded in a settler-colonial history, and in continuing ethno-racial division and domination. In the U.S., crime control developed in the last quarter of the 19th century to explicitly target emancipated Black individuals. The Black Codes, and later Jim Crow laws, criminalized a battery of behaviors associated with Black people and subjected them to increased enforcement and penalties. Though the laws have been abolished, they have endured in various forms for decades, hidden under the legal legitimacy of the U.S. criminal system.

Similarly in Israel, the mass incarceration of Palestinians is rooted in the Zionist political apparatus. From its establishment in 1948 until 1966, Israel imposed a military government on the Arab population living within its borders, and it passed the Defense Emergency Regulations, which created a network of laws designed to restrict the freedom of Arabs. The Regulations criminalized ordinary behavior like free access to land or travel to work, and led to the incarceration of thousands of Arabs. Like Jim Crow laws, the Regulations are now abolished, but they lay the foundation for the discriminatory criminal regime that exists today.

Moreover, both systems subject their minority groups to an “othering” discourse in order to perpetuate and justify their mass incarceration. Like the U.S. centered the War on Drugs into its politics to demonize Black communities, the Israeli government situated the entire Arab population within the security sphere in order to construct the Arab community as a hostile minority. As a result, the stereotyping of Black people as criminals is so pervasive that “criminal predator” is a euphemism for “young Black male.” Similarly in Israel, studies have shown that Israelis, even from early childhood, already associate Arabs with violence, hostility and aggression.

Today, in both criminal regimes, race continues to determine outcome. Arab and Black individuals are more likely than their Israeli and White counterparts to come into contact with police, to be stopped and searched, to be arrested, charged with a crime, tried and convicted. They overwhelmingly receive harsher punishments, suffer more mistreatment in jail, and experience the ramifications of the criminal system more saliently in their communities.

Implications for Solidarity and Abolition 

The similar experiences of Arab and Black populations demonstrate that criminal systems are inherently susceptible to power abuses by majority groups when they are predicated on using state power to determine what is criminal and who can be punished. The carceral state is not used to contribute to the social good, but rather to further and legitimize distributions of wealth and power. These objectives define both the American and Israeli criminal legal systems — they are not unintended byproducts. Through both systems, we also see that law is very rarely neutral, or divorced from an understanding of power.

Consequently, if the policies are to be halted, they must be tackled within the framework of political power, and not solely through appeals to some supposedly neutral body of international or criminal law. Change must be sought on the streets.

It was striking to see the rise in Black and Palestinian solidarity during the BLM protests. These developments in solidarity represent calls for “de-exceptionalizing” each struggle, and instead resituating them in the context of antiracist, anticolonial, and anti-imperialist movements worldwide. There is a newfound understanding that our governments work hand-in-hand, sharing tactics and resources, in order to subdue minority populations, and this understanding has given rise to the internationalization of resistance methods. Of course, we must pursue solidarity while still recognizing the experience of Black Americans as an experience historically distinct from that of Palestinians. But, the role of solidarity is powerful and critical.

Once we understand incarceration systems as unified mechanisms of political control wielded by settler-colonial states, we can strengthen the solidarity among Black and Brown communities in both countries, and ultimately strengthen the push for prison abolition.