The New Jim Crow and Why Black Lives Matter
Eight years have passed since Michelle Alexander published her groundbreaking book, The New Jim Crow, and in the near-decade since, America has witnessed the birth of the Black Lives Matter Movement, the election of Donald Trump, emboldened white supremacy, and a burgeoning number of victims in the War on Drugs. Many seasoned activists and people of color with direct experience dealing with the War on Drugs are already familiar with mass incarceration and the meaning of the New Jim Crow, but there are many Americans who do not fully understand the history, mechanics and consequences of the racial caste system in America.
Today, the United States has 5% of the world’s population, and about 25% of the world’s prisoners. America houses more prisoners than any other country in the world (including China, Russia, Brazil and India). Of the 2.2 million Americans behind bars today, 60 percent of those are people of color. And despite making up 13 percent of the total U.S. population, 40 percent of incarcerated people are black. This is the focus of Alexander’s book: putting into context the legacy of racism in America and how it has evolved into a new racial caste system, what the implications are of the new model of mass incarceration, and what is the way forward.
This essay is essentially a CliffsNotes version of Michelle Alexander’s book (I’ve used all her headers but pared each section down, so they are more concise), with a few refreshed statistics and additions from recent works and relevant organizations. It is not intended as a replacement for reading the book, but instead synthesizes information for those who are unable to read the book in the interim but are still curious to learn more about this subject. Whether you are opposed to racism and would like to understand more deeply the framework for racial justice in the United States, or you have some skepticism about Black Lives Matter, this should help put into context why racial tensions have heightened in American culture and politics. Hopefully, it also offers perspective on why you should care, and what you can do about it.
The Rebirth of Caste
The Birth of Slavery
It is virtually impossible to understand the new racial caste system in America — mass incarceration, without comprehending the history and legacy of racism in America. The story told in schools during Black History Month is usually triumphant, but the reality is more disturbing and pressing.
The concept of race is relatively new — its origins are largely attributable to European imperialism over the last few centuries. In America, the modern conception of race developed as justification for exterminating American Indians, as well as to reconcile chattel slavery against the ideals of freedom whites preached in the new colonies.
Indentured servitude was originally the dominant means of securing cheap labor in the New World. According to historian Lerone Bennet Jr., whites and blacks together struggled to survive against “the big planter apparatus and a social system that legalized terror against black and white bondsmen.” Black people brought to America were not initially all enslaved. Many lived as indentured servants, but as plantation farming grew, so too did demand for labor and land.
Colonists met the increased demand for land by invading and stealing indigenous territory. Throughout this period, portrayals of American Indians in books, newspapers and magazines grew increasingly hostile. The depiction of indigenous people as “savages” became commonplace, providing the justification colonists needed for their extermination.
Slavery answered the call for increased labor demands. Indigenous people were not considered suitable slaves, because they presented too much of a risk. They could organize and fight back, which frightened plantation owners. European immigrants were not viable alternatives — not because of race, but because there were so few of them, and there were concerns that enslaving them would impede voluntary immigration to the new colonies. Africans met the selection criteria and became the ideal slaves. Systematic enslavement of Africans happened quickly and was intensified after events like Bacon’s Rebellion.
Nathaniel Bacon was a white property owner in Jamestown, Virginia, who managed to unite slaves, indentured servants and poor white people in a revolt against the planter elite in 1675. Most free whites in the colonies at the time lived in abject poverty, and indentured servitude, while slightly higher on the rungs of social hierarchy, was still brutal and provided little room for mobility.
When planter elite refused to provide militia support for Bacon’s scheme to seize Native American lands (for himself and others), he retaliated by attacking them, their homes and their property. He strategically condemned them for their oppression of the poor and forged an alliance of white and black bond laborers and slaves, who demanded an end to their servitude. The elite responded with force and false promises of amnesty, although many participants in the revolt were ultimately hanged. Although the threat of Bacon’s Rebellion was quelled, the planter elite were left fearful of the multiracial alliance of bond workers and slaves. Word spread about the success of the revolt, and more uprisings of a similar nature occurred across the colonies.
The planter elite was shaken after Bacon’s Rebellion. Scrambling to maintain dominance after the uprising, they shifted their focus onto black slaves instead of indentured servants. They recognized that non-English-speaking Africans would be easier to control (since they would be less familiar with European culture and language) and therefore less likely to form alliances with poor whites. But they feared this still wouldn’t be enough, so they took it a step further.
A “racial bribe” was catalyzed by the planter elite, wherein they extended exclusive privileges to poor whites, giving them a clear advantage over black slaves. Some of these privileges included granting whites greater access to Native American lands, allowing them to police slaves through patrols and militias, and generating boundaries to minimize competition between free labor and slave labor. The result of this shift was that poor whites now had personal stake in a race-based system of slavery; they were beneficiaries of a newfound kind of power, even though their conditions hadn’t actually improved very much.
The strategy was a wild success. By the mid-1770s, a wedge was sufficiently driven between poor whites and black slaves, and a full racial caste system predicated on slavery had emerged. White colonists perpetuated and justified the degraded status of Africans on the same line of reasoning they invoked against American Indians — that they were an uncivilized lesser race — even as whites marched forward in creating a new nation based on “equality, liberty and justice for all.” Chattel slavery in America was in full-effect before democracy was even born.
Race had an acute impact in defining the foundation of American society. The Constitution in many ways reflected an effort to preserve slavery and protect whites — particularly white property owners. A precondition for the Southern slaveholding colonies being willing to form a union was that the federal government wouldn’t be able to interfere with their right to own slaves. Northern elites were sympathetic to this cause, in the sense that they also wanted their property interests protected. As one of the nation’s Founding Fathers, James Madison, remarked, the nation should be constituted “to protect the minority of the opulent against the majority.” The result was a Constitution designed for a weaker federal government, to protect states’ rights and private property. The language was colorblind (a concept we’ll return to later in detail — in this case referring to the absence of words such as “Negro” or “slave”), but the Constitution solidified the prevailing racial caste system. Even the electoral college was created with slaveholder interests in mind; slaves under our nation’s founding document were defined as three-fifths of a man. This is the structure upon which American democracy has unfolded.
The Death of Slavery
Slavery flourished in the United States for four centuries, and with it, so did the concept of white supremacy. There was widespread faith in the idea that blacks were primitive, whites were inherently superior, and that slavery was for blacks’ own good. This faith reconciled the tension between slavery and the democracy whites had been carving out in the New World. Thomas Jefferson’s idea that “all men are created equal” could still hold true if Africans were not actually real people. When slavery ended, the concept of race that had become so culturally entrenched lived on.
The end of slavery brought a new kind of turmoil to Southern white society. The sudden collapse of their labor force meant that their economy would also collapse, and there would no longer be a formal system to preserve racial hierarchy and prevent “amalgamation” with people who were considered vile and inferior. Poor whites were resentful of this sudden shift, as their skin color had previously been one of the few badges of superiority that they could claim.
White Southerners became consumed by the need to develop a new racial order. Terrified of potential insurrections (now that blacks were no longer controlled by the close watch of their masters on insular plantations), black people were increasingly perceived as menacing and dangerous. In fact, many of the modern stereotypes attributed to black men as “predators” date back to this period, when whites irrationally feared being attacked or having their women raped by angry mobs of black men.
Power was still held tightly by white Southerners, so it wasn’t long before black codes were passed — stringent laws policing the new freedmen. Black codes included vagrancy laws, and other policies which foreshadowed Jim Crow. Vagrancy laws made it a criminal offense to be unemployed and were applied exclusively to blacks. Eight of the nine states that enacted these laws allowed prisoners to be leased out to plantations and private companies for little or no pay.
The black codes were eventually overturned, and new federal civil rights legislation protecting the freed slaves was passed, leading to the brief but extraordinary time known as the Reconstruction Era. Achievements of this period include the passage of the Civil Rights Act of 1866 (bestowing full citizenship upon African Americans), the Fourteenth Amendment (due process and “equal protection of the laws”), the Fifteenth Amendment (granting African American men the right to vote — an accomplishment that would soon be marred by loopholes allowing for poll taxes, literacy tests and other voter suppression tactics) and the Ku Klux Klan Acts, which prevented voting infringement.
In addition to the civil rights victories of the Reconstruction Era, new agencies and resources were also developed to aid impoverished former slaves and build out a public education system. This system gave many blacks and even poor whites the opportunity to learn to read and write for the first time. As literacy rates rose, blacks began to vote, start successful businesses, open schools and even break into politics. Only three years after Reconstruction began in 1867, at least 15 percent of all Southern elected officials were black. To put in context the long period of backlash and voter suppression that would follow Reconstruction, fifteen years after the Voting Rights Act of 1965, less than 8 percent of all Southern elected officials were black. The progress of Reconstruction soon came to a vicious halt, and Jim Crow was born — a cyclical reality that is reminiscent of W.E.B. Du Bois’s quote, “The slave went free; stood a brief moment in the sun; then moved back again toward slavery.”
The Birth of Jim Crow
Backlash against Reconstruction was rapid and extreme. Southern conservatives vowed to “redeem” the South, and they had the support of a resurgent Ku Klux Klan to instrument their redemption. The Klan perpetrated a terrorist campaign against Reconstruction governments and leaders, scaring them into submission with bombings, lynchings and mob violence. The campaign worked, and the federal government ultimately removed troops from the South and slashed funding for the Freedmen’s Bureau, so that blacks were once again left to their own devices.
Vagrancy laws and aggressive policing against “mischief” and “insulting gestures” created an enormous market for convict leasing. Tens of thousands of African Americans were arrested during this period for completely arbitrary infractions or no reason at all; many would be hit with court costs and fines and then be required to work them off in order to secure their release. Since most were unable to pay these “debts,” they were sold as forced laborers to plantations, railroads, corporations and other operations throughout the South. Black laborers faced extremely high death rates, since contractors were unconcerned with their health (unlike previous slave owners, who needed slaves to be able to survive hard labor).
The passage of the Thirteenth Amendment abolished slavery but left one major loophole: slavery was still a legal punishment for crime. After this was solidified in the landmark Virginia Supreme Court case, Ruffin v. Commonwealth, the nation experienced its first prison boom. During the decade following Redemption (the period of backlash post-Reconstruction), the population of convicts grew at ten times the rate of the general population. African Americans were relegated once more to a state of near defenselessness.
Despite the success of the Redemption in reasserting hegemony for Southern whites, there was still no clear consensus about what the new racial order should be. Three alternatives philosophies emerged that competed for the region’s support: liberalism, conservatism and radicalism. Of these, the radical party (which would later form the Populist Party) managed to galvanize African American voters and poor whites, by campaigning against large corporations and the wealthy elite of the North and South. Even though racial prejudice spiked among the very white populations the Populist ideals were targeted to, the movement still enjoyed success in the South, largely due to public discontent following the agrarian depression of the 1880s and 1890s.
Concerned by the potency of the alliance between poor whites and African Americans, conservatives again resorted to the tactics employed at the height of the Redemption, ranging from intimidation to bribery and terror. Segregation laws, much like the response to Bacon’s Rebellion almost 200 years earlier, were initiated to drive a wedge between poor whites and African Americans. The racial bribe worked, and the biracial partnerships of the Populist movement dissolved as poor whites re-aligned themselves with conservativism. By the turn of the twentieth century, laws were in place that disenfranchised blacks and discriminated against them in nearly every aspect of life; Jim Crow became the new racial order. The term “Jim Crow” came from a minstrel show character (not from a real person) and was regarded as the “return to sanity,” and the “final settlement.”
The Death of Jim Crow
Unlike the Reconstruction, which was defined by specific dates characterizing its beginning and end (generally described as occurring from the freedom of slaves in the North in 1863 to the withdrawal of federal troops from the South in 1877), the end of Jim Crow is far more ambiguous.
Brown v. Board of Education is generally regarded as the death of Jim Crow in 1954, but there was broad public opposition to the system in the North as early as 1945. Some scholars argue that the end of Jim Crow didn’t come until the height of the Civil Rights Movement. The decline of Jim Crow was facilitated by the migration of blacks north and the growing influence of the NAACP. World War II also had a profound impact on public perception of racism; the United States stood in blatant opposition to Nazism and oppression against European Jews, yet it unapologetically instrumented a racial caste system at home. It was a blight on the record of the country that framed itself as a leader of the “free world.” There was also fear that African Americans might become susceptible to the influence of communism if they weren’t offered better opportunities for equality in America.
By 1944, the Supreme Court ended all-white primary elections in Smith v. Allwright, and state laws that required segregation on interstate buses were declared unconstitutional two years later. Even before Brown, desegregation was picking up steam; the Supreme Court mandated in 1949 that Texas’s segregated law school for blacks was “inherently unequal and inferior in every respect to its law school for whites” (25). Similarly, McLaurin v. Oklahoma in 1950 required the state of Oklahoma to desegregate its law schools. These chipped away at the “separate but equal” doctrine, but the system was still alive and well. That began to monumentally change with Brown v. Board of Education.
The passage of Brown didn’t only threaten public school desegregation — by default, it also challenged the entire system of institutionalized discrimination in the South. This came after more than fifty years of almost total federal nonintervention in the racial affairs of the South. Southern whites reacted with rage, spawning in a new wave of terror that resurged the tactics of the Ku Klux Klan. Castrations, killings, bombings of black homes and churches, and targeted beatings and antagonism against black leaders was the norm. Desegregation across the South came to a screeching halt. The response this time, however, was a grassroots movement that became the Civil Rights Movement.
Employing boycotts, marches and sit-ins, activists blazed forward against the terror of white mob (and police) violence. They persisted against fire hoses, police dogs, beatings, bombings and more. By 1963 it had progressed into a mass movement, and President Kennedy announced the introduction of a strong civil rights bill. After Kennedy’s assassination, President Johnson too committed to the goal of racial integration, resulting in the Civil Rights Act of 1964. This formally dismantled Jim Crow discrimination in employment, voting, education, public accommodations and all activities with federal financing. This was complemented by the Voting Rights Act of 1965, which removed several barriers to enfranchisement for African Americans.
Restoring voting power to African Americans had a swift and potent effect. Voter registration among Southern blacks soared — in Alabama, the rate grew from 19.3 percent to 61.3 percent; in Mississippi it went from 6.7 percent to 66.5 percent. Blacks were finally allowed to exist in public areas that were once reserved for whites-only, and miscegenation laws were overturned.
Despite these successes, many civil right leaders grew apprehensive that blacks would likely remain locked in poverty unless there were some major economic reforms. Antipoverty efforts became central to the doctrine of Civil Rights in what would evolve into the “Poor People’s Movement,” and which influenced President Kennedy’s and President Johnson’s own efforts to address economic inequality.
The Poor People’s Movement promised to once again cross racial boundaries in pursuit of economic justice for all. Martin Luther King Jr. was a prominent leader of this movement, and prior to his assassination, he envisioned bringing thousands of disadvantaged Americans in an interracial alliance to Washington, D.C. Near the time of his death in 1968, he observed that there had been a certain degree of progress for blacks since the Civil Rights Act of 1964, but that any meaningful and lasting transformation would require a radical redistribution of economic and political power in America.
As with every preceding movement that began to forge multiracial coalitions in pursuit of economic justice, a new kind of backlash was forming. This one would effectively adapt to the culture of a post-Civil Rights Movement America; taking cues from a society that no longer endorsed overt racism, the new racial caste system would find traction and widespread success by adopting a new kind of race-neutral language.
The Birth of Mass Incarceration
The rhetoric of “law and order” was first employed in the 1950s as Southern leaders mobilized white opposition to the Civil Rights Movement. This same language would eventually underpin the formally “colorblind” vernacular of the new racial caste system. Civil rights activists engaged in direct-action tactics while attempting to desegregate public facilities, and these actions were broadly characterized by white lawmakers and police as criminal, reinforcing a sense of justice among whites who opposed civil rights legislation.
Other segregationists went a step further, insisting that integration explicitly caused crime. This sentiment gained traction amidst the publication of FBI reports regarding dramatic increases in national crime rates. The riots in Harlem and Rochester in 1964 and the wave of uprisings following the assassination of Martin Luther King Jr. in 1968 reinforced certain racial imagery across the country that associated civil rights for blacks with rampant crime. Conservatives denounced civil rights activists who suggested that uprisings were caused by widespread police brutality; as West Virginia Senator Robert Byrd plainly put it, “If [blacks] conduct themselves in an orderly way, they will not have to worry about police brutality.”
Acceptable discourse changed in time, and with it, so did the appearance of a blatantly racist agenda from segregationists. “Cracking down on crime” became the codified tune which would be sung by politicians and lawmakers across the spectrum for decades to come. No distinction was drawn between civil rights direct-action tactics, violent rebellions and traditional crimes. Instead, these were all swept under the umbrella of “crime in the streets,” as noted by the Sentencing Project founder, Marc Mauer. Crime supplanted segregation in public debate after the passage of the Civil Rights Act.
The Great Depression also played a vital role in American race relations and party alignment. President Franklin D. Roosevelt developed the New Deal, which was designed to mitigate suffering among the nation’s poor. These programs were still highly discriminatory, but at least included blacks as beneficiaries in some capacity. Poor and working-class whites across the North and South responded positively to the economic relief, as did African Americans, prompting the ascendancy of the Democratic New Deal coalition in electoral politics from 1932 through the early 1960s.
That dominance ended with the creation of the Southern Strategy. Law and order rhetoric was embraced by working-class whites, and racial reforms were deeply resented, leading Southern conservatives to believe they could create a “new majority” with the white South, and half the Catholic blue-collar votes from big cities. President Richard Nixon would master this strategy and solidify the use of stealthy, racialized rhetoric to pander to racial fears across the country.
H.R. Haldeman, a key Nixon adviser, recalls that Nixon “’emphasized that you have to face the fact that the whole problem is really the blacks. The key is to devise a system that recognizes this while not appearing to.’ Similarly, John Ehrlichman, special counsel to the president, explained the Nixon administration’s campaign strategy of 1968 in this way: ‘We’ll go after the racists.’ In Ehrlichman’s view, ‘that subliminal appeal to the anti-black voter was always present in Nixon’s statements and speeches’” (30).
The Emerging Republican Majority, published in 1969 by Republican strategist Kevin Phillips, argued that Republicans could retain a long-term majority if they continued to campaign on racial issues with coded anti-black language. Around the same time, Conservatives began arguing that poverty wasn’t caused by structural factors, but instead by culture — especially black culture. These “social pathologies” of the poor, including street crime and illegal drug use, were coopted and manipulated by conservatives. Conservative politicians appealed to their voters by embracing the narrative that these ills were caused by overly generous economic relief. Media imagery and political discourse soon began to feature imagery of black “welfare cheats” and their dangerous offspring.
Liberals like Lyndon Johnson responded to the anti-welfare attacks by defending the role of social reforms in combating the “root causes” of crime (such as poverty). Polarizing images of poor as being either “deserving” or “undeserving” became the pinnacle of this partisan debate. Poor and working-class whites had indeed bore a disproportionate share of the costs of integration relative to their wealthier counterparts (ranging from job competition to sharing neighborhood borders that put them closer to school integration), and the affluent white liberals were presented as being out of touch with ordinary working people. By 1968, Gallup Poll found that 81 percent of people agreed that “law and order has broken down in this country,” and most blamed the “Negroes who start riots” and “Communists.”
Law and order became the central message of the Nixon campaign. A caption at the end of one of his campaign ads declared “This time… vote like your whole world depended on it… NIXON.’ Nixon reportedly commented upon viewing this ad that it “hits it right on the nose. It’s all about those damn Negro-Puerto Rican groups out there.”
The late 1960s and early 1970s saw the transformation of the belief about the nature of poverty among working-class whites. According to Thomas and Mary Edsall, pitting whites against blacks strengthened the narrative that the “condition of life for the disadvantaged — particularly for disadvantaged blacks — is the responsibility of those afflicted, and not the responsibility of the larger society.” This rhetoric would be steadily reinforced until the conservative revolution reached its peak with the election of Ronald Reagan.
Political and social crises continued in the aftermath of the Civil Rights Movement through the 1970s, with widespread controversy over the equality principle (especially busing and affirmative action), as well as political clashes over the Vietnam War and Watergate. Welfare was consistently condemned by conservatives during this time; in time it was subtly reframed as a battle between hardworking whites and lazy poor black people. Nixon called for a “war on drugs” after declaring illegal drugs “public enemy number one.” There was clear backlash against blacks underway, but no consensus yet about what the new racial and social order would be in response.
Ronald Regan mastered what Jeremy Mayer called “the excision of the language of race from conservative public discourse” when campaigning for the presidency. Black people were the clear targets of his seemingly race-neutral castigation of “welfare queens” and criminal “predators.” The rhetoric was apparently “colorblind,” which made it impossible to prove the racism behind the statements. The welfare queen became a popular anecdote shared by Reagan; she had “80 names, 30 addresses, 12 Social Security cards,” and her “tax-free income alone is over $150,000.” The coded language was intended to convey a “lazy, greedy, black ghetto mother.” Similar sentiments were invoked in narratives around food stamps. His racially coded language effectively appealed to many Americans; 22 percent of Democrats defected from the party and voted for Reagan. That shot up to 34 percent for Democrats who felt that civil rights leaders were pushing “too fast.”
Despite his campaign promises, Reagan was in a tenuous position to boost federal involvement in fighting crime, since that had traditionally been the jurisdiction of state and local law enforcement. That all changed with Reagan’s announcement in October of 1982 of his administration’s War on Drugs. When the War on Drugs was declared, less than 2 percent of the nation perceived drugs as the most pressing issue America faced. The War on Drugs, however, was not at all about cracking down on drugs. Instead, it had everything to do with addressing public concern around race.
Federal law enforcement budgets skyrocketed with the introduction of the drug war. From 1980 to 1984, “FBI antidrug funding increased from $8 million to $95 million. Department of Defense antidrug allocations increased from $33 million in 1981 to $1,042 million in 1991. During that same period, DEA antidrug spending grew from $86 to $1,026 million, and FBI antidrug allocations grew from $38 to $181 million. By contrast, funding for agencies responsible for drug treatment, prevention, and education was dramatically reduced. The budget of the National Institute on Drug Abuse, for example, was reduced from $274 million to $57 million from 1981 to 1984, and antidrug funds allocated to the Department of Education were cut from $14 million to $3 million” (33).
A media offensive was launched to justify and maintain support for the War on Drugs. This campaign relied on sensationalizing the role of crack cocaine in inner-city neighborhoods. At the same time that the drug war was introduced, these inner-city neighborhoods were enduring economic collapse. Blue-collar urban factory jobs that had been readily available in the 1950s and 1960s disappeared. Globalization moved manufacturing jobs abroad into countries without unions, where workers could be paid significantly lower wages than in the United States. Technology and automation simultaneously eliminated swaths of blue-collar jobs. Most black people didn’t hold college degrees at that time, and the majority had attended segregated, under-resourced and underfunded schools. One study shows that around 1970, “more than 70 percent of all blacks working in metropolitan areas held blue-collar jobs. Yet by 1987, when the drug war hit high gear, the industrial employment of black men had plummeted to 28 percent” (33).
New manufacturing jobs were situated predominantly in suburbs. Most African Americans, however, were trapped in ghettos, where only 18–28 percent of urban black fathers had access to automobiles. Unemployment among inner-city residents provided a compelling incentive to sell drugs. Crack cocaine is pharmacologically almost the same as powder cocaine, except that it’s in a form that can be vaporized and inhaled, which allows for faster and more intense highs using smaller amounts of product. That made it possible to sell small amounts of the drug at lower costs. Crack emerged in 1985, a few years after the War on Drug was announced, and the Reagan administration wasted no time in capitalizing on that event to fuel support for the war.
The Reagan administration aggressively worked to grow media coverage and support for the drug war. The June 1986 Newsweek issue declared crack to be the biggest story since Vietnam and Watergate. Two months later, Time announced that crack was “the issue of the year.” Thousands of additional media stories appeared, and the racial subtexts were clear; typically, black “crack whores,” “crack babies” and “gangbangers” were featured — reinforcing the stereotype that blacks were part of an inferior and criminal subculture. In the year between October 1988 and 1989, Washington Post alone ran 1,565 stories around the crack cocaine and the “drug scourge.” Even Richard Harwood, the ombudsman for the Post, later admitted that paper had lost “a proper sense of perspective” in light of the “hyperbole epidemic.” He added that “politicians are doing a number on people’s heads.”
With the media frenzy in full swing, the Anti-Drug Abuse Act of 1986 was signed into law. $2 billion was allocated to the antidrug crusade. The Anti-Drug Abuse Act enabled military involvement in drug control efforts, permitted death penalty for certain drug-related crimes, and allowed for some illegally obtained evidence to be used in drug trials. Worst of all, it brought about mandatory minimum sentences, which disproportionately punished those who distributed crack (usage of crack was strongly associated with blacks, as opposed to powder cocaine, which was associated with whites).
The drug policy was made more stringent by Congress in 1988, when it authorized public housing authorities to evict any tenants who allowed drug-related criminal activity to happen on or near public housing. It also precluded anyone convicted of a drug offense from receiving federal benefits such as student loans. The mandatory minimum sentence was made even stricter, with a five-year sentence for simple possession of cocaine base — even for cases with no evidence of intent to sell, and for first-time offenders. For context, up until 1988, the maximum sentence for possession of any amount of any drug had been only one year of imprisonment.
Researchers in the 1970s found a strong correlation between racial attitudes and support for “get tough on crime” and antiwelfare measures. This was important for the key white voters who supported the War on Drugs, and who remained resentful of black progress and civil rights. The race-neutral language that was adopted by politicians allowed them and their voters to express racial hostility without appearing to be overtly racist. President George Bush Sr., who succeeded Reagan, upheld this strategy. Most famously, his Willie Horton ad featured a “dark-skinned black man, a convicted murderer who escaped while on a work furlough and then raped and murdered a white woman in her home. The ad blamed Bush’s opponent, Massachusetts governor Michael Dukakis, for the death of the white woman, because he approved the furlough program” (35). It destroyed Dukakis’s candidacy.
Media coverage and imagery fomented public support of the drug war. By 1989, 64 percent of respondents to a New York Times/CBS News Poll believed that drug use was “the most pressing problem facing the nation.” This surge did not correspond to a dramatic change in illegal drug activity; it was a clear corollary of the political campaign that was waged to garnish support for the drug war. The result was the rise of a full-fledged War on Drugs, and with it, a new racial caste system. By 1991, the Sentencing Project reported that incarceration in the United States was unprecedented in world history, and that one in four young African American men were now under the control of the justice system. Despite this stunning consequence of “get tough” legislation, neither Democrats nor Republicans had any desire to change course.
In fact, presidential candidate Bill Clinton vowed in 1992 that no Republican would ever be perceived as tougher on crime than he. Weeks before the critical New Hampshire primary, he flew home to Arkansas to personally oversee the execution or Ricky Ray Rector, a “mentally impaired black man who had so little conception of what was about to happen to him that he asked for the dessert from his last meal to be saved for him until the morning” (36).
Clinton endorsed the federal “three strikes and you’re out law” when he became president. This came in the form of a $30 billion crime bill sent to him in 1994; signing it into effect was regarded as a strong victory for Democrats. It created new federal capital crimes, mandated more life sentences and authorized over $16 billion in state prison grants and expansion of police forces.
Soon, Clinton went a step further and capitulated to the conservative welfare agenda. The “new Democrats” were eager to gain favorability among white swing voters. Appealing to them through punitive criminal justice measures made it so that Clinton was accountable for codifying the new racial caste system more than any other president. He signed the Personal Responsibility and Work Opportunity Reconciliation Act, replacing welfare with Temporary Assistance to Needy Families (TANF), which imposed a five-year lifetime limit on welfare assistance. It also included a lifetime ban on welfare and food stamps for anyone convicted of a felony drug offense — including mere possession of marijuana.
The punitive measures didn’t end there; Clinton also made it easier for public housing projects to exclude anyone with a criminal history, leaving many of those targeted by the drug war homeless. At the turn of the twenty-first century, more than 2 million people were incarcerated. Millions of others who held criminal records were cast to the margins of mainstream society, where not unlike Jim Crow, they could be discriminated against in employment, housing and access to education, and voting rights. The system categorically denied any racist intentions, yet ninety percent of those admitted to prison for drug offenses in many states were black or Latino.
Most programming in modern media deeply romanticizes law enforcement. Those who have been swept up in the criminal justice system know that the reality is starkly different from what is portrayed on television dramas. The grim reality that is rarely shown involves people never getting to meet with an attorney before they go to court, police doing stops and searches for no reason whatsoever, innocent people accepting plea bargains to avoid stringent mandatory sentences, and children being sent to adult prisons.
The New Jim Crow focuses on the War on Drugs and its impact on mass incarceration, because drug convictions are the single greatest cause of the explosion in incarceration rates in the United States over the last few decades. To be exact, “drug offenses alone account for two-thirds of the rise in the federal inmate population and more than half of the rise in state prisoners between 1985 and 2000. Approximately a half-million people are in prison or jail for a drug offense today, compared to an estimated 41,100 in 1980 — an increase of 1,100 percent… As a result, more than 31 million people have been arrested for drug offenses since the drug war began” (38).
The War on Drugs relied on the public believing a string of myths about its goals in order to see it through, so it’s important to dispel some of those in order to contextualize the true nature of the drug war. First, the war was not designed to target “kingpins” or big-time dealers. Most of those arrested are charged for mere possession of drugs; for example, in 2005, only one in five drug arrests was for sales. Most people serving time in state prisons for drug offenses don’t have any history of violence or significant selling activity.
Second, the drug war does not predominantly deal with dangerous drugs. Marijuana possession encompassed nearly 80 percent of the growth in drug arrests in the 1990s. That is for a drug that is now recreationally legal in an increasing number of states.
Drug arrests resulting in prison sentences have quadrupled, leading to a prison boom. Between 1980 and 2000, the incarceration population went from 300,000 to more than 2 million. By the end of 2007, over 7 million Americans were in prison, on probation, or on parole. The following sections examine how the drug war works; how it has been operationalized to target people of color and relegate them to a permanent dsecond-class status.
Rules of the Game
Police are almost entirely unconstrained by legal rules in executing the War on Drugs. In fact, police discretion plays an elemental role in maintaining the drug war. Police discretion as we know it has been largely facilitated by the systematic destruction of Fourth Amendment protections. The Fourth Amendment states:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.
The Fourth Amendment originates in colonial opposition to the arbitrary searches British colonizers imposed for uncovering seditious libels. The humiliation from police harassment, intimidation and arbitrary searches was so powerful, it helped spark the American Revolution. Hence, the Fourth Amendment was regarded as an essential part of the Constitution by the Founding Fathers. However, the Supreme Court’s jurisprudence in interpreting the Fourth Amendment sharply changed in the years following the declaration of the drug war.
By no means is the Fourth Amendment the only civil liberty that has been weakened or overturned by the drug war. Other rules from recent years have seen Court decisions upholding the random searches and sweeps of public schools and students, expanding the government’s authority to wiretap, legalizing police and prosecutorial use of paid, unidentified informants, allowing forfeiture of cash, homes and other property based on unproven allegations of illegal drug activity, and more.
The stage was set for the deterioration of Fourth Amendment protections with the Terry v. Ohio ruling in 1968. The Supreme Court ruled that a police officer would be “entitled for the protection of himself and others in the area” to conduct a search “to discover weapons that might be used against the officer” if they observed conduct that they believed to be dangerous and criminal. This was known as the stop-and-frisk rule, and it made it constitutionally permissible for officers to stop, question and frisk suspects — even without probable cause — if they had “reasonable articulable suspicion.” This decision would change the experience of people of color in America forever. Today, police don’t even need to have reason to believe people are engaged in criminal activity or even dangerous to justify stopping and searching them. With “consent,” police can stop, question and search anyone for any or no reason at all.
Just Say No
Florida v. Bostick was the first signal after the inception of the War on Drugs that the Supreme Court would not allow the Fourth Amendment to stall prosecution. Terrance Bostick, a twenty-eight-year-old black man, was sleeping on a Greyhound bus from Miami to Atlanta. He was awoken by two police officers, wearing bright green “raid” jackets, displaying their badges and a gun. The officers were “working the bus,” searching for people who may be carrying drugs. Upon request, he provided them his identification and ticket; then they asked to search his bag. He complied, knowing his bag contained a pound of cocaine. They had no grounds for suspecting him of criminal activity, and they got lucky. He was arrested, charged and convicted for trafficking cocaine.
Bostick’s story reflected a common tactic police employed in the War on Drugs. Suspicionless sweeps of buses in interstate or intrastate travel would result in “interviews” and requests for “consent” to search passengers’ luggage. Police are never required to inform passengers that they are at liberty to remain silent or refuse consent. The result of this coercive strategy is an extremely high volume of searches. For example, one officer who used these techniques searched over three thousand bags in just nine months. The success rates of these sweeps were nominal; in one example, a sweep of one hundred buses yielded only seven arrests.
The U.S. Supreme Court ultimately ruled that Bostick’s police encounter and consent was purely voluntary, and he was therefore not “seized” within the meaning of the Fourth Amendment. Even if he didn’t feel free to leave when confronted by police, the Court believed that a “reasonable person” would have felt free to terminate the encounter. This precedent would apply later to situations such as a case involving a fourteen-year-old girl interrogated by the police.
Earlier precedent from many lower courts had generally found absurd the concept that “reasonable people” would feel empowered to refuse to speak when confronted by police. Federal judge Prentiss Marshall said, “The average person encountered will feel obliged to stop and respond. Few will feel that they can walk away or refuse to answer.” Studies have confirmed that the overwhelming majority of people who are confronted by police comply with questions and requests for searches — even among those who have reason to resist.
Intimidation has allowed for officers to freely conduct so-called consent searches in the streets. But officers have also been able to expand enforcement of War on Drugs onto people driving in cars through pretext stops. Classic pretext stops are unmotivated by traffic law enforcement, and entirely by a desire to fish for drugs in the absence of any meaningful evidence of illegal drug activity. Like consent searches, pretext stops are sanctioned by the Supreme Court.
Michael Whren and James Brown challenged the constitutionality of these pretext stops when they were stopped for a minor traffic violation in 1993 and arrested for cocaine possession. They argued that based on the sheer scale of traffic regulations and the difficulty in obeying the rules perfectly at all times, police would almost always be able to stop someone to hunt for drugs. Someone failing to turn a signal at the proper distance from an intersection could permit police to single them out for baseless drug investigations, despite the total absence of evidence of illegal drug activity. This was the kind of arbitrary stop the Fourth Amendment was specifically intended to prevent, but the Court ruled that police are free to use minor traffic violations as pretext for conducting drug investigations.
The Supreme Court went a step further in Ohio v. Robinette a few months later, reversing an Ohio Supreme Court decision that had provided minimal protection for motorists. The Ohio court adopted a bright-line rule — a requirement that officers tell motorists they have the right to leave before asking to consent to search their vehicles. The Supreme Court deemed this basic requirement “unrealistic.” No one, therefore, needs to be informed of their rights during a stop or search. And if that weren’t enough, the Supreme Court decided in Atwater v. City of Lago Vista that, for motorists with the audacity to refuse to consent to a search, police are at liberty to arrest them anyway (even if the statutory penalty for the traffic violation is a fine, and not jail time).
Another legal option for officers if motorists refuse to grant “consent” is to bring a drug-sniffing dog to the scene. This applies to police in traffic stops, airports, bus and train stations and beyond. The Supreme Court ruled that walking these drug-sniffing dogs around cars or luggage does not constitute a “search,” and therefore isn’t protected by Fourth Amendment scrutiny. If the dog alerts officers to drugs, they can then gain probable cause for search without consent. Most people who are told a drug-sniffing dog will be called to the scene will back down and “consent” anyway.
Most of the court cases involving drug-law enforcement involve guilty people. Police typically release innocent people, so their stories are rarely heard in court. Few of the innocent complain, since many (especially poor people of color, who are also less likely to be able to afford legal support for complaints) are afraid police will retaliate or harass them. Those who try to often find that the humiliation they endured was entirely legal. The preponderance of guilty people in American courtrooms gives the false impression to the public, however, that police “hunches” are credible leads.
In fact, most people stopped and searched in the War on Drugs are entirely innocent. Police are not trained with special abilities for spotting drug criminals as they drive by. Rather, the Drug Enforcement Agency (DEA) trains police in the manner of discriminatory and unreasonable stops and searches. One example of this is Operation Pipeline. It was launched by the DEA in 1984 as part of Reagan’s rollout of the War on Drugs. It trained more than three hundred state and local law enforcement agencies in the use of pretextual traffic stops and consent searches for drug interdiction. Officers learned things like how to lengthen a routine traffic stop and take advantage of it to search for drugs, how to get consent from reluctant motorists, and how to use drug-sniffing dogs when probable cause is required. Over 25,000 officers in forty-eight states had been trained in these tactics by 2000.
Operation Pipeline represents a “volume” approach to drug enforcement. One California Highway Patrol Officer remarked of the scale of innocent people swept up, “It’s sheer numbers…. You’ve got to kiss a lot of frogs before you find a prince.” Estimates suggest 95 percent of Pipeline stops yield no illegal drugs. One study found that up to 99 percent of these stops from federally funded drug enforcement task forces resulted in no citation at all.
DEA “drug-courier profiles” are notoriously unreliable. Profiles to justify stopping people can include traveling with luggage, traveling without luggage, acting too calm, acting too nervous, deplaning either first, last or in the middle, and other equally contradictory and arbitrary criteria. The Supreme Court has so far allowed the use of these profiles as guides in the exercise of police discretion.
It Pays to Play
One may reasonably ask why drug enforcement became such a strong priority when drug abuse hadn’t been a pressing concern in most communities before the drug war. Federalization of drug crime posed a violation to the conservative doctrine around states’ rights and local control. Many local and state law officials regarded the drug war as an unnecessary distraction that kept resources from being dedicated to more serious crimes, like murder, rape and violent assault. The Reagan administration had to work diligently to build consensus among state and local law enforcement agencies that the drug war should take priority. The solution was to dole out cash. Massive grants were offered to local law enforcement effectually as bribes from the federal government.
Congress increased federal aid to law enforcement in 1988 at the request of the Reagan administration. The legislation that yielded this increase brought about the Edward Byrne Memorial State and Local Law Enforcement Assistance Program, which encouraged grant recipients to help fight the War on Drugs. Beneficiaries received millions of dollars in federal aid in exchange for waging the war. The DEA also offered free training, intelligence and technical support to state highway patrol agencies that committed officers to highway drug interdiction. The Pentagon offered military intelligence and millions of dollars in firepower to local and state agencies that signed on to enforce the war.
According to the Cato Institute, in 1997 alone, more than 1.2 million pieces of military equipment were transitioned from the Pentagon to local police departments. A National Journal report found that between January 1997 and October 1999, 3.4 million orders of Pentagon equipment had been processed to over eleven thousand domestic police agencies across all fifty states. These included helicopters, M-16 rifles, grenade launchers, bulletproof helmets and night-vision goggles. A retired police chief from New Haven, Connecticut, recounted to the New York Times, “I was offered tanks, bazookas, anything I wanted.”
With cash and military equipment flowing through police departments, paramilitary units (often referred to as Special Weapons and Tactics, or SWAT teams) formed across the nation to fight the drug war. SWAT teams had originally been designed for emergency situations such as hostage takings or hijackings, but that changed in the 1980s with the funding of the war on drugs. Today, SWAT teams mostly serve narcotics warrants, typically with forced, unannounced entry into homes. Some jurisdictions only have narcotics warrants served by SWAT teams, regardless of the severity or nature of the alleged drug crime.
Consequently, SWAT teams have flourished. In 1972, the United States experienced a few hundred paramilitary drug raids per year. By 2001, there were forty-thousand per year. These military-style raids involve “[blasting] into people’s homes, typically in the middle of the night, throwing grenades, shouting, and pointing guns and rifles at anyone inside, often including young children. In recent years, dozens of people have been killed by police in the course of these raids, including elderly grandparents and those who are completely innocent of any crime” (47). Botched raids have killed and traumatized legions of innocent people.
One case of a raid in 1995 from Dodge County, Wisconsin, exemplified how SWAT teams approached routine narcotics searches in a manner that resembled an actual battlefront. Police raided Scott Bryant’s home after finding traces of marijuana in his garbage. Moments after entering his mobile home, they shot and killed Bryant. He was unarmed, and his eight-year-old son, who had been asleep in the next room, watched his father die before the ambulance arrived. The incident was compared to a hunting accident by the Dodge County sheriff. Equally terrifying and violent raids have been conducted not just in homes or housing projects, but in schools — largely targeting poor students of color — as well.
“Community policing” was mutated into “military policing” in 1981, when President Reagan convinced Congress to pass the Military Cooperation with Law Enforcement Act. This was designed to facilitate local, state and federal police access to military bases, intelligence, weaponry equipment and research. It concretized an exception to the Posse Comitatus Act, which had prohibited the use of military for civilian policing since the time of the Civil War. To strengthen this legislation, Reagan’s National Security Decision Directive was declared, making drugs a threat to U.S. national security. Presidents Bush and Clinton would follow suit and continue the steady flow of military equipment, training and technology to state and local law enforcement in exchange for delivering on drug-law enforcement.
Financial incentives for local law enforcement were not well-publicized, leading to the misapprehension that the spike in drug arrests was accounting for a surge in illegal drug activity, rather than a mere injection of money and resources into enforcement efforts.
Cash grants and military equipment and training were not the only financial incentives put in place by the Reagan administration for the War on Drugs. Another insidious policy implemented allowed state and local law enforcement agencies to keep cash and assets they seize while waging the drug war. Modern drug forfeiture originates in the passage of the Comprehensive Drug Abuse Prevention and Control Act, passed in 1970. With the intent of seizing the means of production to stop the flow of drug trafficking, the new law authorized government seizure and forfeiture of drugs and equipment for storing, manufacturing and transporting drugs. It was strengthened in 1984, when Congress amended the law to allow for the retention and use of proceeds from asset forfeitures. Police agencies could retain up to 80 percent of the assets’ value.
Overnight, police budgets could multiply by seizing the cash, cars and homes of anyone merely under suspicion of using or selling drugs. When these rules were adopted, 80 percent of forfeitures went uncontested, since the law was so heavily weighted in the government’s favor. Seizure could happen with no notice or hearings, provided there was probable cause to believe the property was “involved” in a crime. Probable cause could be based on hearsay, innuendo, or paid, self-serving testimony from someone with adverse interests to the property owner. No one would need to be charged with or even guilty of a crime for their assets to be seized. Since most of those whose assets have been seized are poor, they typically can’t hire an attorney or pay court costs to get their money or property back. To make matters worse, the government can retaliate by piling criminal charges (even if they are baseless) onto those who attempt to get their property back.
Drug forfeiture has been highly lucrative for law enforcement, and a powerful incentive for waging the War on Drugs. A Department of Justice report found that between 1988 and 1992 alone, “Byrne-funded drug task forces seized over $1 billion in assets. Remarkably, this figure does not include drug task forces funded by the DEA or other federal agencies” (50). Antithetical to the myth that the War on Drugs targets “kingpins,” drug-forfeiture legislation has specifically allowed for wealthier people whose property has a greater worth to use their assets to buy their freedom. For example, one Massachusetts investigation found that a “payment of $50,000 in drug profits won a 6.3-year reduction in a sentence for dealers,” and reduction or elimination of trafficking charges were exchanged through agreements of at least $10,000 in almost 75 percent of these cases.
The lack of oversight has allowed many police departments to abuse forfeiture laws in a corrupt manner. For example, an Oakland task force behaved, according to one officer, “more or less like a wolfpack…[taking] anything and everything we saw on the street corner.” Under pressure to keep arrests up, officers’ jobs were dependent on federal grants, and they had to show that the money was well-spent.
Reports from journalists and investigators are disturbing; in Florida, almost one thousand videotapes of highway traffic stops showed police using pretext stops to confiscate “tens of thousands of dollars from motorists against whom there [was] no evidence of wrongdoing” (Blumenson). Money was frequently taken without filing any criminal charges. Journalists reported similar findings in Louisiana, where police seized cash through the same means, using the money to fund police department ski trips and other unauthorized uses. A Los Angeles Sheriff’s Department employee admitted that it was routine for deputies to plant drugs and falsify reports to gain probable cause for cash seizures.
After rampant abuses began to gain media exposure, Congress passed the Civil Asset Forfeiture Reform Act in 2000. The greatest traction was gained pertaining to wealthy whites whose property had been seized. This included Donald Scott, a millionaire who was shot and killed at his two-hundred-acre Malibu ranch when a task force raided it in search of marijuana. They never found marijuana, but an investigation revealed that the primary goal for the raid was to possibly forfeit Scott’s property. That would have netted law enforcement around $5 million in assets.
The Reform Act changed due-process, including transitioning burden of proof onto the government, eliminating cost bonds previously required to be posted by owners, and providing some minimal protections for innocent parties standing to lose their homes. Before the Reform Act, the Supreme Court ruled that a property owner’s guilt or innocence was irrelevant to the property’s guilt. However, the burden of proof remains tremendously low. For instance, owners must prove they “did not know the conduct giving rise to the forfeiture” and did “all that reasonably could be expected under the circumstances to terminate such use of the property.” An example of how problematic these criteria are could be a situation in which a woman might have her car forfeited because she knew her husband occasionally smoked weed. Since the “car” was guilty of transporting someone who broke a drug law, she could be punished via seizure even though she committed no crime. Women in relationships with men accused of drug crimes are some of the most frequent claimants in drug forfeiture proceedings.
Owners of forfeited property are also not entitled to counsel in forfeiture proceedings, unless they’ve been charged with a crime. Since most forfeiture cases don’t involve criminal charges, people must represent themselves in court against the federal government. This is part of why up to 90 percent of forfeiture cases in some jurisdictions go unchallenged — few are willing or able to pay an attorney more than the worth of their assets to get them back, or risk having criminal charges filed against them in retaliation.
What happens after a drug arrest is equally alarming. Defendants are frequently denied meaningful legal representation, are coerced, in fear of receiving lengthy sentences, into accepting plea bargains, and then placed permanently into the system of control. Tens of thousands of poor people go to jail each year without even talking to a lawyer. The Supreme Court decided in Gideon v. Wainwright that poor people accused of serious crimes were entitled to legal counsel. But states and local governments have discretion to decide how these should be funded and overseen. Amidst the drug war, funding for public defenders has been severely depleted.
Around 80 percent of criminal defendants are poor and incapable of hiring lawyers. Underpaid public defenders often have more than one hundred clients at a time, many of whom are facing decades-long sentences or even life behind bars. Promising lawyers are discouraged from becoming public defenders due to the horrendous pay and working conditions. For example, Virginia pays its court-appointed attorneys a maximum of $428 to represent someone with a felony carrying a sentence of less than twenty years. In Wisconsin, “more than 11,000 poor people go to court without representation every year because anyone who earns more than $3,000 per year is considered able to afford a lawyer. In Lake Charles, Louisiana, the public defender office has only two investigators for the 2,500 new felony cases and 4,000 new misdemeanor cases assigned to the office each year” (53). These critical limitations in access to lawyers apply to people charged with extremely serious crimes, like murder, as much as those charged with drug crimes.
It is rare for defendants to go to trial; most criminal cases are resolved through plea bargaining. A plea bargain means the defendant pleads guilty in exchange for some prosecutorial leniency. The prosecutor wields the greatest power in the criminal justice system — more than the judge and even the police. The prosecutor can dismiss a case for any or no reason or decide to pile on a plethora of charges (known as overcharging) that couldn’t realistically even be proven in court. The effect is that most defendants plead guilty, rather than risking being convicted of a lengthy list of charges. Even if they are innocent, many take the offer for “only” a few years in prison, rather risk the twenty years or life sentence that they could suffer if they went to trial and were convicted of the laundry list of crimes the prosecutor brought forth.
Mandatory minimum sentences led to a sharp increase in guilty pleas. These sentences for first-time offenders are five or ten years (other developed countries, by contrast, carry no more than six months in jail for this, if any time is even imposed; United States drug crime sentences are often longer than those which developed countries impose on convicted murderers). Three strikes laws acted as a bargaining chip, boosting the power of prosecutors, who suddenly had the coercive power to encourage plea bargains in lieu of a lifetime sentence for drug crimes. While there is no way of knowing concretely, there are estimates suggesting that thousands of innocent people have been locked up due to being coerced into accepting plea bargains for crimes they did not commit.
Prosecutors will load up charges to coerce defendants into testifying or snitching in related cases as well. Incentives for snitching have caused this kind of testimony to skyrocket, but the result has been a profusion of unreliable and entirely fabricated accounts. And who wouldn’t reasonably feel some temptation to lie if that were the only means of avoiding a forty-year sentence for a minor drug crime?
Many defendants in drug cases are using or selling to support an addiction. It would save money and resources and be far more humanitarian to send drug offenders for treatment and rehabilitation instead of prison. Lengthy prison sentences for drug crimes significantly reduce the chances of successful reentry for drug offenders. That fact was disregarded, however, and the use of mandatory minimum sentences grew exponentially. The Supreme Court upheld forty years of imprisonment in 1982 for someone attempting to sell 9 ounces of marijuana. Then in Harmelin v. Michigan, the Court upheld a lifetime sentence for a first-time offender’s attempt to sell 23 ounces of crack cocaine. This was deemed “reasonably proportionate” to the offense committed and not “cruel and unusual” punishment, per the Eighth Amendment. Lifetime sentences for first-time drug offenses are unheard of across the rest of the developed world.
It has been argued that mandatory sentencing laws keep “violent criminals” off the streets, but most recipients of these penalties are drug offenders and others convicted of nonviolent crimes. As a matter of fact, “repeat offender” could encompass someone who had a single offense from decades ago. A single case can result in first, second and sometimes third strikes. So, someone who was arrested for possession of marijuana and cocaine could qualify for two separate felonies for each drug, and therefore “two strikes.” If that person passed a bad check twenty years later, they could receive a lifetime in prison. This is essentially what happened to Leandro Andrade, whose fifty-years-to-lifetime sentence for stealing videotapes was upheld by the Supreme Court.
There are federal judges (including conservative judges) who have quit in protest of these strict sentencing guidelines. Even Reagan appointees, such as Judge Stanley Marshall, were distraught over these punitive rules; Marshall told a reporter, “I’ve always been considered a fairly harsh sentence, but it’s killing me that I’m sending so many low-level offenders away for all this time.” That statement was made after he sentenced a mother in Washington, D.C. convicted of “possession” of crack (after officers found it in a box her son had hidden in her attic) to five years in prison.
The Prison Label
Few people understand that the prison population increase from 350,000 to 2.3 million (as of 2008 — it is now 2.2 million in 2018) over the course of 25 years was due to changes in sentencing policy laws, rather than changing crime rates. Fewer people understand the degree to which, once someone is labeled a felon, they are vulnerable to perfectly legal discrimination, stigma and exclusion. The moment you are branded a felon in America, you become a second-class citizen.
In addition to the 2.3 million people in prison and jail in 2008, another 5.1 million were under “community correctional supervision,” which is probation or parole. Due to the discrimination ex-offenders with the “prison label” endure from food stamps to employment to public housing, it is no surprise that most of them wind up back in prison. One Bureau of Justice Statistics study found that around 30 percent of released prisoners from their sample were arrested again within six months of being released. That grew to 68 percent within three years. A small minority were rearrested for violent crimes — most were arrested for property and drug offenses, and offenses against the public order.
Those on probation or parole are exposed to surveillance and monitoring from police and can be stopped and searched (consent does not need to be obtained) at any time for no reason at all. Other restrictions (e.g. prohibition on associating with felons) and requirements (e.g. paying fines) create ripe circumstances for condemning someone back into prison. This self-sustaining trap has been amplified through every cross-section of the War on Drugs.
In 1980, parole violators accounted for only 1 percent of all prison admissions. By 2000, this accounted for 35 percent. In other terms, “about as many people were returned to prison for parole violations in 2000 as were admitted to prison in 1980 for all reasons” (59). If you fail to adapt to life with a criminal record — if you get depressed and miss an appointment with your parole officer (because of unemployment, or if you can’t afford bus fare to get there), you get sent right back to prison. And this represents the punitive attitude that has allowed most Americans to contemplate the millions of people in prison with relative ambivalence.
The Color of Justice
Across America, African Americans (especially those from poor neighborhoods) are subjected to tactics and practices that would never be tolerated in middle-class white areas. The law enforcement tactics previously described have been used almost entirely in poor communities of color. A 2000 Human Rights Watch report showed that African Americans constitute 80 to 90 percent of all drugs offenders sent to prison in seven states. At least fifteen states boast an incarceration rate for drug charges against blacks ranging from twenty to fifty-seven times greater that that of white men. Despite the fact that the majority of drug users and dealers nationwide are white, 75 percent of all people imprisoned for drug offenses are black or Latino.
Crime rates have often been cited as a crude justification for the execution of this racialized agenda. But people of all races use and sell illegal drugs at very similar rates. A variety of studies indicate greater illegal drug use and selling among whites, including a Human Rights Watch survey that found blacks to be no more likely to be guilty of drug crimes than whites. Furthermore, government data showed that white youth were the most likely of any racial group to be guilty of using or selling illegal drugs. White youth have approximately three times the number of emergency room visits pertaining to drugs as do their African American counterparts.
Drug markets tend to reflect America’s racial and socioeconomic boundaries and segregation. Whites tend to sell drugs to whites, and blacks to blacks. White people do not tend to visit the ‘hood to purchase drugs. Drug trafficking occurs across every faction of American society. Yet black men are admitted to state prison on drug charges at a rate that is over thirteen times higher than that of white men. In 2006, 1 in every 14 black men was in prison, compared to 1 in 106 white men. This is not explained by rate of illegal drug activity. The explanation lies in racism alone.
The myth of violent crime has erroneously framed much of modern discourse around the prison boom. Violent crime is actually at a historical low, but incarceration rates continue to rise. Homicide offenders, for example, account for 0.4 percent of the federal prison growth up until the late 2000s, whereas drug offenders accounted for nearly 61 percent. These realities may appear unsettling in how conspicuously they are divided among racial lines, especially when there is no explicitly verbal, public edict that mandates targeting of people of color in the drug war.
Picking and Choosing — The Role of Discretion
“The Lockdown” identifies issues with legal rules that grant police discretion for searches and seizures, as well as prosecutorial discretion. These rules have opened the floodgates for racially discriminatory results. Drug-law enforcement is unique in that the exchange of drugs is a consensual activity. Illegal drug use is also so ubiquitous that it would be impossible to address in its entirety. In 2002, there were 19.5 million users of illegal drugs, and only 1.5 million drug arrests, resulting in 175,000 people admitted to prison for a drug offense. A large degree of discretion must be exercised in prioritizing policing strategy, since the vast majority of Americans across all races have violated drug laws in their lifetimes.
The research of Jimmie Reeves and Richard Campbell demonstrates the transformation in media imagery around cocaine as the practice of smoking it came to be associated with poor blacks. Previously, stories about cocaine focused on white recreational users; they focused on drug treatment, rehabilitation clinics and recovery. Once the War on Drugs was in full swing, this changed dramatically. News stories adopted a clear “us against them” framework, where codified racial lines were conspicuously drawn. The calls for “war” when the media was rife with images of black drug crime drew a distinct picture of who the enemy was.
A 1995 survey published in the Journal of Alcohol and Drug Education asked, “Would you close your eyes for a second, envision a drug user, and describe that person to me?” Ninety-five percent of respondents pictured a black drug user. Meanwhile, African Americans constituted only 15 percent of drug users at that time, and whites accounted for the overwhelming majority of drug users. But almost no respondents pictured a white person as the drug user. The responses for drug traffickers echoed these results.
Law enforcement officials are as vulnerable to political rhetoric and media imagery as the general public is. For three decades, news stories pertaining to nearly all street crime have disproportionately featured black offenders. This narrative has become so entrenched that one study found 60 percent of viewers who saw a story with no accompanying image false recalled seeing one; 70 percent of those believed the perpetrator was African American.
Implicit bias tests from social scientists confirm that even those who consciously claim to hold no negative attitudes towards blacks still have some degree of unconscious bias — this is true even for those with black friends and relatives. Studies unfortunately have also found that punitiveness and hostility almost universally increase when participants are exposed to visual or verbal cues associated with African Americans. Leniency is greater for people with lighter skin and associated with white stereotypes. Jurors and officers are vulnerable to this as well. Coupled with the expansion of police discretion, racial discrimination was all but inevitable.
Closing the Courthouse Doors — McCleskey v. Kemp
A huge blow to any hope for sentencing reform came in the decision of McCleskey v. Kemp, when the Supreme Court decided that, even if there was credible statistical evidence, racial bias couldn’t be challenged under the Fourteenth Amendment unless there was undeniable evidence of conscious and discriminatory intent. Warren McCleskey, a black man facing death penalty for killing a white police officer during an armed robbery in Georgia, challenged his death sentence on the grounds of racially biased sentencing. He presented exhaustive evidence from the Baldus study, which showed defendants who killed white victims received the death penalty eleven times more than those who killed black victims. Georgia prosecutors seemed to be the culprits in the disparity; 70 percent of cases involving black defendants and white victims sought death penalty, compared to only 19 percent for white defendants and black victims.
The Court rejected McCleskey’s claims. The statistical evidence was accepted as valid, but it was decided that there needed to be evidence of conscious racial bias in his individual case in order to prove unlawful discrimination. Without the admission from a prosecutor or judge that they had acted with deliberate racial bias, the courthouse doors would close, burying virtually all future claims of racial bias in sentencing.
Cracked Up — Discriminatory Sentencing in the War on Drugs
Edward Clary was stopped and searched in the St. Louis airport two months after his eighteenth birthday because he “looked like” a drug courier. He had never attempted to deal drugs before and had no criminal record, but he had been persuaded by some friends to bring drugs home from California. Police found crack cocaine on him, and he was convicted and sentenced in federal court under laws that punish crack offenses on hundred times more severely than offenses involving powder cocaine. Because he had been caught with more than fifty grams of crack (less than two ounces), he was sentenced to a minimum of ten years in federal prison.
Clary challenged the constitutionality of the hundred-to-one ratio in court. His lawyers argued the sentencing law discriminates against African Americans, since the majority of people charged with crack-related crimes were black (around 93 percent of convicted crack offenders were black) whereas offenders for powder cocaine-related crimes were mostly white. Judge Clyde Cahill of the Federal District of Missouri, an African American judge, declared the hundred-to-one ratio racially discriminatory in violation of the Fourteenth Amendment; he sentenced Clary as if he had carried home powder cocaine. Clary served a four-year term and was released.
The prosecution appealed Clary’s case to the Eighth Circuit Court of Appeals, and Judge Cahill’s decision was reversed due to the McCleskey v. Kemp decision. Clary now married and a father, was forced to return to prison to complete his ten-year sentence.
Georgia implemented an even more stringent “two strikes and you’re out” sentencing policy. Georgia prosecutors only brought these lifetime sentences for second-time drug offenders against 1 percent of white defendants, but 16 percent of black defendants. Consequently, 98.4 percent of those serving life sentences under the provision were black. The Georgia Supreme Court narrowly ruled that there was a threshold case of discrimination and the prosecutors were required to offer a race-neutral explanation. The state’s forty-six district attorneys, all of whom were white, responded with a petition to reverse the decision, arguing that being required to explain the gross racial disparities would present a “substantial step toward invalidating” the death penalty, and “paralyze the criminal justice system.” The Georgia Supreme Court reversed itself. To date, there has never been a successful challenge made to racial bias in sentencing under McCleskey v. Kemp in the United States.
Charging Ahead — Armstrong v. United States
Defendants who suspect racial bias on part of prosecutors are trapped in a situation where, if they wish to make a claim about selective prosecution, they must offer in advance the very evidence that could only be reasonably attained through discovery of the prosecutor’s files. This was the nature of Armstrong v. United States, in which Christopher Lee Armstrong and his four companions who were subjected to a drug raid in Los Angeles in 1992. They were all back, and the public defenders on their case recognized that, of the fifty-three crack cases their office handled from the prior three years, forty-eight defendants were black, five Hispanic, and none were white. Ironically, most crack offenders were actually white, but no white crack offenders had ever been charged. They suspected federal prosecutors were diverting whites to the state system, where crack penalties were significantly less severe. But they would need to gain access to prosecutors’ records to prove their suspicions. They filed a motion for discovery of these files to support their claim of selective prosecution under the Fourteenth Amendment. The decision made its way to the Supreme Court, where it was decided that Armstrong must produce in advance the very information he sought to discover: evidence that white defendants who should have been charged in federal court were deliberately moved to the state system.
The implication of the Armstrong v. United States decision was that there could be seemingly endless discretion afforded to prosecution in sentencing — unless there was evidence of conscious and intentional bias. The Court’s decision, of course, made that nearly impossible to prove.
Meanwhile, numerous studies have identified similar patterns in racially biased sentencing. A report from 2000 found that for youth who had never been previously sent to juvenile prison, African Americans were more than six times as likely as whites to be sentenced to prison for identical crimes. Relatedly, a study co-sponsored by the U.S. Justice Department in 2007 found that, while African American youth account for 16 percent of all youth, they represented 28 percent of all juvenile arrests, 35 percent of youth deferred to adult criminal court, and 58 percent of youth admitted to adult state prisons. A review of Washington state juvenile sentencing reports found that prosecutors routinely described black crimes as being committed due to personality flaws like disrespect, whereas whites did so due to external conditions like family conflict.
Discretion allows prosecutors to decide who is a “good boy” who was simply experimenting with drugs, and who is a dangerous drug-dealing thug, and to reflect this subjective judgment in their charges. And Armstrong, along with McCleskey allows this discretion to remain unfettered and unchecked. Racial biases and stereotypes abound, but the system remains officially colorblind.
In Defense of the All-White Jury — Purkett v. Elm
In 1965, the Supreme Court ruled in Swain v. Alabama that prosecutors could strike blacks from juries, provided they did not always do it. Two decades later, in line with the growing public consensus that overt racism was bad, the Court changed course in Batson v. Kentucky. The new ruling prohibited prosecutors from racially discriminating in jury selection. Not long after this decision, it became obvious that prosecutors could easily circumvent this in an apparently colorblind and entirely legal manner.
Racial discrimination in jury selection is a practice dating back to slavery. No black person ever sat on a jury in the United States until 1860. Reconstruction finally introduced blacks to the opportunity to serve on juries, but when Democratic conservatives trudged forth with “Redemption,” blacks were stripped of their right to vote and once again denied the right to serve on juries. The Supreme Court intervened against this practice in 1880 but did little to enforce their decision around equal protection.
The Supreme Court upheld convictions of black defendants by all-white juries in situations of obvious exclusion of black jurors up until Neal v. Delaware in 1935. The Delaware Supreme Court had argued that “the great body of black men residing in this State are utterly unqualified [for jury service] by want of intelligence, experience, or moral integrity.” Only in this manner of explicit and blatant racial discrimination would the Supreme Court dissent — a pattern which is still plainly extant.
Jury shuffling is a practice that has allowed prosecution to systematically reduce the number of black jurors. This is exacerbated through peremptory strikes, where prosecutors and defense attorneys can “peremptorily” strike jurors they don’t like. In theory, this is intended to reduce bias, but in practice, these are notoriously discriminatory. It is easy in most jurisdictions to achieve all- or nearly all-white juries. Often, potential jurors are called for service based on Department of Motor Vehicle lists or lists of registered voters. People of color are less likely to own cars or register to vote, and thirty-one states and the federal government practice lifetime bans of felons from juries. The result is that about 30 percent of black men are automatically banned from jury service for life. Race-neutral excuses to strike the few that remain are easy for prosecutors to provide.
Acceptable race-neutral explanations for justifying black jurors can be things like jurors being too young or too old; too comfortable or too uncomfortable. In 1995, Supreme Court ruled in Purkett v. Elm that any race-neutral reason, no matter what, is enough to satisfy the burden of proving that striking a specific racial group is not actually based on race. In that case, a prosecutor struck a juror for having long curly hair, and another for having a mustache and beard. This was enough to satisfy the Court.
The Occupation — Policing the Enemy
Prosecutors may have the greatest power in criminal justice, but police have the greatest discretion, and that is multiplied in drug-law enforcement. Little known to the public, the Supreme Court has formally authorized racial discrimination in policing; police can decide whom to target, and where to target. The drug war would easily have been waged on college campuses or white suburbs if police had chosen to do so. But that would have been political suicide. Instead, police have deliberately targeted the ‘hood, where the plight of poor black and brown people was non-newsworthy and largely invisible to wealthier whites.
Hyper-segregation of the black poor in ghettos have facilitated the roundup of prisoners in the War on Drugs. The book American Apartheid chronicles how racially segregated ghettos were meticulously created by federal policy — not owing to market forces or personal housing choices. The presence of militarized law enforcement in ghetto communities has come to be known as “the Occupation” by black youth and rap artists. It is standard for people to be stopped and frisked; when a police car comes by, they know to “assume the position” and ready themselves for detention — a phenomenon largely unimaginable for the majority of white youth across America.
Scholars and law enforcement have attempted to justify the specific centrality of the War on Drugs with the reasoning that police can combat illegal drug activity easier in ghetto communities, since black and Latino users are more likely to obtain drugs in public, visible spaces. This logic is supported by the fact that complaints do come from ghetto areas about drug activity, and violence associated with drug trade happens disproportionately in inner cities. However, many law enforcement officials will admit that demand for illegal drugs is great enough that taking one dealer off the street will all but guarantee he’ll be “replaced within an hour.” Plus, a predictable consequence of disrupting drug rings is the outbreak of a slew of violence as others fight to control a previously stabilized drug market. “Convenience” for policing is also a weak excuse for the discretion to target the drug war in poor communities of color.
A 2002 study from the University of Washington found that in the racially mixed city of Seattle, contrary to “common sense,” the higher arrest rate for African Americans was not explained by higher rates of offending — nor was it justified through the other typical excuses, such as open-air drug markets, citizen complaints or drug-related violence. They debunked the myth that white drug dealers deal indoors, as well. They found that Seattle residents were likely to report suspected narcotics activities in residences, but police still devoted their resources to open-air drug markets (going so far as to target the single precinct that was the least likely to be identified in citizen complaints of suspected drug activity).
Seattle police focused overwhelmingly on crack (the drug more likely to be sold by African Americans in Seattle), despite hospital records that indicated overdose deaths involving heroin were greater than overdose deaths for crack and powder cocaine combined. Local police conceded that crack in Seattle wasn’t causing any significant level of violence either, but they denied any of their enforcement efforts were discriminatory.
The Supreme Court has established nearly insurmountable barriers for challenging race discrimination in the criminal justice system. A good example of this is Adolph Lyons’s attempt to ban lethal chokeholds by the Los Angeles Police Department. Lyons was a twenty-four-year-old black man who was driving in Los Angeles one morning when four police officers pulled him over for a burnt-out taillight. They ordered him out of his car, guns drawn. He complied, even as they asked him to face his car, spread his legs and put his hands on his head. After they finished their pat down, he dropped his hands, which prompted an officer to slam them back on his head. Lyons complained the car keys he was holding against his head were hurting him, and the officer responded by forcing him into a chokehold. He lost consciousness and collapsed. Once he awoke, “he was spitting up blood and dirt, had urinated and defecated, and had suffered permanent damage to his larynx.” The officers issued a traffic ticket for the taillight and released him.
Lyons sued the City of Los Angeles for violating his constitutional rights and sought a ban against chokeholds as a remedy. Sixteen people had been killed by police use of the chokehold when his case reached the Supreme Court — twelve of them were black men. The Court ruled that Lyons lacked “standing” to seek an injunction against chokeholds, unless he could should he was highly likely to be subjected to it again. He argued that, as a black man who was vulnerable to pretext traffic stops, he was at risk to endure it again. The Court disagreed, citing that he would need to prove that all police officers in Los Angeles “always choke any citizen with whom they have an encounter,” and that “the City ordered or authorized the police to act in such a manner.” He didn’t even allege racial discrimination, but if he had, the decision would have almost certainly not been in his favor. Those who remember the tragic murder of Eric Garner, who died from a chokehold by an NYPD policeman in 2014, might cringe at the results of that earlier legislation.
As if the near impossibility of suing in favor of policy reform was not enough of an injustice, litigants are also precluded from suing the state or the state police for damages. The Court has ruled that city police departments can’t be sued for damages unless a specific city policy or custom has been shown to authorize an illegal practice. These criteria are extremely difficult to prove, and race discrimination in these kinds of suits is even more difficult to prove.
Race as a Factor
The Supreme Court has ruled that in policing, race is a legitimate factor in discretionary decision-making. United States v. Brignoni-Ponce authorized the use of race as a factor for police to decide which motorists to stop and search. The decision mandated that police could take a person’s Mexican appearance into account if they suspected the vehicle might contain undocumented immigrants. The Court said, “the likelihood that any person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.” Police have carte blanche to legally racially profile for stops and searches, despite frequent insistence from highway patrol agencies that “We do not engage in racial profiling.” The underlying and fallacious reasoning behind these statements is that racial profiling exists only when race is the sole factor.
A major issue is that while race is rarely the only reason police will stop and search someone, it is often a determinative reason. For instance, as Alexander notes, “a young white male wearing baggy pants, standing in front of his high school and surrounded by his friends, might well be ignored by police officers… Similarly situated people inevitably are treated differently when police are granted permission to rely on racial stereotypes when making discretionary decisions” (80). Furthermore, since the ghetto was designed to contain and control people based on race, even an apparently race-neutral factor like location can still be highly discriminatory.
It is important to note that a black teenager who has been arrested for marijuana possession twice can be considered a repeat offender but is in reality no different than a white frat boy who smokes weed in his dorm room. The key difference between them is that one is wealthy and white and therefore privileged, whereas the other is not. There are multiple layers of problematic political, social and economic criteria that define who gets caught, and who is held accountable to the standard of the law.
Officers can defer to theoretically non-racial reasoning for targeting certain people with great ease. So long as police don’t explicitly say “I only stopped them because they were black” in court, judges are unlikely to second-guess their motives. Studies show that police take advantage of this and clearly exercise discretion along racial lines in their drug interdiction programs.
One study from New Jersey in the 1990s showed that only 15 percent of all drivers on the New Jersey Turnpike were racial minorities, but black motorists made up 42 percent of all stops and 73 percent of all arrests — and blacks and whites violated traffic laws at almost the exact same rate. A Maryland study yielded comparable results; blacks were 70 percent of those stopped and searched, despite being only 17 percent of drivers along part of I-95 near Baltimore. In both studies, whites were more likely to be carrying illegal drugs in their vehicles (in the case of New Jersey, they were about twice as likely).
Other evidence collected from studies in the years following the release of the New Jersey and Maryland data shows similar findings. In one instance, a reporter analyzed 148 hours of video footage from Volusia County, Florida. Blacks and Latinos comprised 5 percent of drivers in the more than 1,000 stops throughout the footage, but they represented more than 80 percent of those who were stopped and searched. New York Police Departments statistics from 2007 showed that in the prior year, officers stopped 508,540 people on the street. The vast majority were racial minorities, and over half were African American.
Many Americans will remember the tragic shooting of twenty-two-year-old Amadou Diallo in 1999. Diallo was an African immigrant who was followed to his apartment by four white police officers from the NYPD who viewed him as suspicious. Diallo went into his building to retrieve his wallet (likely to produce identification, and the officers, claiming they thought the wallet was a weapon, shot him forty-one times. He was unarmed and held no criminal record. His murder incited widespread protests, which prompted an investigation from the New York attorney general. The studies done found that African Americans in New York were stopped six times more frequently than white people, and that blacks were less likely than whites to possess drugs and other contraband that could result in arrests.
Police in various cities such as Los Angeles and Denver have created morally questionable databases of suspected criminals that document the majority of young black men in the entire city. The ACLU refers to this phenomenon as a Black List; criteria for inclusion is vague and discriminatory, including wearing baggy jeans and having a friend or relative in a gang. In Denver, using slang, having certain hairstyles or jewelry could land people in the database. An investigation in 1992 found that eight out of every ten people of color in the entire city of Denver were on the list of suspected criminals.
Keeanga-Yamahtta Taylor published an extraordinary book in 2016, From #BlackLivesMatter to Black Liberation, detailing how these racial profiling practices in Ferguson contributed to the protests and unrest that happened in 2014 (although they were officially incited by the shooting of unarmed black eighteen-year-old Michael Brown). An investigation into Ferguson found that African Americans had accounted for 89 percent of traffic stops, despite being only 67 percent of the population. Black people made up 92 percent of arrests corresponding to those traffic stops.
The End of an Era
Whatever opportunity remained for filing racial profiling lawsuits was quelled with the decision of Alexander v. Sandoval in 2001. This case dealt with the Alabama Department of Public Safety’s decision to only administer driver’s license exams in English. The plaintiffs argued this practice was discriminatory under Title VI of the Civil Rights Act of 1964, and the Supreme Court decided that Title VI doesn’t provide a “private right of action” to citizens and civil groups. What that means is that victims of discrimination are not able to sue under the law. After Sandoval, only the federal government can sue to enforce antidiscrimination provisions under Title VI, which it might never have the inclination or capacity to do in most racial profiling cases.
The Cruel Hand
Today, institutionalized discrimination exists that strongly resembles that which existed at the height of Jim Crow — it has merely adapted by attaching itself to the “felon” label. American society may collectively agree that overtly hating people based on skin color is wrong, but criminals are the one social group that American culture says it is acceptable to hate. The phrase “treated like a criminal” speaks to the implicit lack of humanity or shamelessness with which we regard those who bear that label.
Brave New World
It may come as a surprise that few criminal defendants are told by their attorneys about the consequences of a guilty plea or conviction. It is rare that people understand they will be permanently relegated to a status where they are “unfit” for jury service, are likely to be denied the right to vote, or can legally be discriminated against in employment opportunities for the rest of their lives. Judges are not required to disclose the forfeiture of these rights either when defendants plead guilty. And given the negligible amount of time defendants receive with their public defenders, it’s unlikely that this information will be conveyed to them.
No Place Like Home
When a prisoner is released, the first thing they must do is figure out where they will go. Some have families waiting for them, who have a place for them to stay. Most, however, do not. And even if they have a short-term place to stay, they are left to their own devices to find a longer-term solution. A felony record bars anyone from public housing assistance and permits discrimination in private housing markets.
Thanks to the efforts of the Clinton administration and his calls for “one strike and you’re out” in public housing, agencies were authorized to exclude and evict drug offenders and felons as well as any applicant believed to be abusing alcohol or using illegal drugs. A conviction was not required for these decisions to be made. Decisions could be appealed, but that could rarely succeed without an attorney, which is not a luxury most applicants for public housing can afford. Guidelines made clear that the funding for public housing agencies was contingent on their strict enforcement of these principles.
One story that illustrates the devastating consequences of public housing discrimination is that of a forty-two-year-old African American man who was denied public housing for himself and his three children. He had previously pleaded guilty to drug possession and spent thirty days in jail, so the housing agency barred him from entry. Since he couldn’t find housing, he lost custody of his children and became homeless. For a minor drug offense, he lost his family and sleeps many nights on the streets.
A conviction is not even necessary for legal housing discrimination. Arrests without convictions or fines are enough for public housing to reject applicants. Since African Americans and Latinos are disproportionately targeted by the War on Drugs, it’s far more likely they’ll be arrested for nonviolent, minor crimes. This virtually guarantees discriminatory results in public housing.
Regulations for public housing go one step further, however. The “no-fault” clause in every public housing lease stipulates, per Clinton’s “One Strike and You’re Out” policy, that if tenants, or any member of their household or any guest of the tenant, engages in drug-related or other criminal activity anywhere (on- or off-premises), tenancy will be terminated. The Supreme Court decided in 2002 that it didn’t matter whether or not the tenant had any kind of awareness or knowledge of the activity. Such is what happened when William Lee and Barbara Hill were evicted after their grandson smoked marijuana in a parking lot near their public housing.
One of the most harmful effects of this (aside from the invariable increase in homelessness, due to the disproportionate reliance many poor people of color have on public housing in order to survive, while they are also targeted by the War on Drugs) is that many are reluctant to allow friends or relatives who have been released from prison to stay with them. It’s no wonder that a study from the McCormick Institute of Public Affairs found that almost a quarter of guests in homeless shelters had been incarcerated within the previous year.
Finding employment is one of the other major hurdles that people face when they are released from prison. The justice system often exerts tremendous pressure on parolees to find employment; one study found that forty out of fifty-one jurisdictions (fifty states plus Washington, D.C.) required parolees to “maintain gainful employment.” If they did not, they could receive additional prison time.
Employment factors into a basic human need to contribute to society and to support oneself and one’s family. So deep is the connection between employment and community connection, that most countries around the world regard work as a basic human right. Deprivation of work (among men, especially) is strongly associated with depression and violence. But getting a job can be a nearly impossible feat when you have a criminal record.
It is legal in almost every state for private employers to discriminate against people with past criminal convictions. It’s legal in most of them to deny employment even to people who were merely arrested (but never convicted). Most job applications, even for a McDonald’s cashier, will ask ex-offenders to “check the box.” This typically defeats all chances of even gaining an interview. One 2002 survey of 122 California employers found that less than a quarter were willing to consider hiring someone convicted of a nonviolent drug-related felony. To make matters worse, professional licenses can also be denied on the grounds of past arrests or convictions for those who hope to become self-employed (as a gardener, a barber, etc.).
Education is another major hurdle for people getting out of prison. Around 70 percent of offenders and ex-offenders dropped out of high school. Approximately half are functionally illiterate. Much of this lends to the early ages at which many people are diverted from their decrepit, underfunded schools and into the prison system (often referred to as the “school-to-prison pipeline”).
“Spatial mismatch” also contributes to the difficulty in gaining employment for ex-offenders. Their greatest chances of finding work is often in construction or manufacturing — both of which require little customer contact — but these jobs can be extremely hard to access. Due to globalization and deindustrialization, these jobs have largely disappeared from the urban core. For those who don’t have access to a car or have suspended driver’s licenses, the process of even trying to secure these jobs can be crushing.
The story of Murray McNair showcases the severity of this employment trap. McNair was a twenty-two-year-old African American who returned to Newark, New Jersey after serving time for drug offenses. He lived in a small apartment with his pregnant girlfriend, his sister and his sister’s children. A federally-funded job training program operated by Goodwill Industries allowed McNair to find a $9-an-hour job at a warehouse twenty miles away. He had to take two buses and a taxi to get there. When you make $9 an hour and spend at least $20 commuting each day, how can you still pay rent, buy food and support your family?
The Black Box
Black men convicted of felonies are the most severely disadvantaged when it comes to securing jobs. They are the least likely to receive job offers out of any demographic group, and suburban employers are statistically the least willing to hire them. Fifty years ago, employers were at liberty to discriminate based on race; today, the prison label has replaced race as a form of legal and legitimate discrimination.
Given the barriers that many black men face in the job market, it should not come as a surprise that almost one-third of young black men in the United States are unemployed. The rate of joblessness for young black male dropouts, including those incarcerated, is 65 percent. Ethnographic research suggests that many employers implicitly fear violence by black men and are likely to make hiring decisions based on those fears. Without even knowing explicitly whether an applicant is an ex-offender, employers may consciously, or unconsciously, treat all black men as if they have a criminal record.
For the lucky few parolees who manage to gain employment, most still find themselves unable to survive in the mainstream, legal economy. Newly released prisoners are required to pay fines to agencies ranging from probation departments and courts to child-support enforcement agencies. Some may also be billed for drug testing and treatment that they must receive as a condition of parole.
Fines and fees, much of which have been implemented since the inception of the War on Drugs, include things like public defender application fees, bail investigation fees, and then a host of postconviction fees like public defender recoupment fees and parole or probation service fees.
Reports show that two-thirds of people in jail made under $12,000 prior to arrest. The debts, fines and fees that accumulate are paralyzing for ex-offenders. As a result, most have their paychecks garnished. Probation officers in most states can require individuals to dedicate 35 percent of their income towards the various fines and fees ordered by numerous agencies. Federal law allows for child-support enforcement officers to garnish up to 65 percent of an ex-offender’s wages for child support. It is entirely possible for 100 percent of an ex-offender’s wages to therefore be surrendered. This reality makes people less likely to seek employment, and more vulnerable to criminal relapse.
Even for those who do not choose to participate in the illegal economy to avoid having their wages garnished, they still might go back to prison for not meeting the financial terms of their probation. One study showed that 12 percent of probation revocations were at least in part due to probationers failing to pay their debts. It is very possible to be thrown back into prison simply for being poor.
Modern practices of debtor’s prisons aren’t altogether different from what happened after the Civil War, when convict leasing was widespread. Inmates in prison work today for far less than the minimum wage — typically between 25 cents and $3 per hour. They are arbitrarily “charged” for incarceration-related expenses, rendering it impossible to save money that would eventually allow them to pay back their debts or make a successful transition into the real world.
Let Them Eat Cake
President Clinton’s welfare reform legislation in 1996 imposed five-year lifetime limits on public benefits. This may sound reasonable, but when someone bears the prison label and is required to “check the box” on housing and employment applications, five years is unlikely to be enough time for them to gain financial stability. Worse, Clinton’s legislation required states to permanently bar people with drug-related felony convictions from receiving public assistance. No matter what the circumstances (if they had a family relying on them, for instance), no one with a drug conviction could receive food assistance.
The Silent Minority
Only two states — Maine and Vermont — allow inmates to vote. Most states continue to bar prisoners from voting even after they’re released on parole. Some states deny this right from anywhere between a few years to the rest of one’s life. Compare this to a country like Germany, where prisoners are allowed and actively encouraged to vote. The United Nations Human Rights Committee has charged that the U.S. disenfranchisement policies (which affect millions) are discriminatory and violate international law.
For the formerly incarcerated who are technically eligible to vote, the restoration process is bureaucratic and expensive, leaving most disenfranchised for life. The multitude of fines, court costs and the maze of paperwork are today’s version of poll taxes and literacy tests. This disenfranchisement has profound implications. It was widely reported after the 2004 election that, “had the 600,000 former felons who had completed their sentence in Florida been allowed to vote, Al Gore would have been elected president of the United States rather than George W. Bush” (95). This is true of countless other close elections as well, in every level of public office.
Aside from bureaucracy and expenses, many ex-offenders are reluctant to register to vote due to fear of putting their food stamps at risk. Some had been lied to by parole and probation officers and told they weren’t allowed to. If this sounds unrealistic or extreme, recall the fact that many Southern blacks alive today have vivid memories of the dangerous consequences their parents and grandparents risked and endured when they attempted to vote in the 1950s.
Next to the legalized discrimination and exclusion from various aspects of life and society, general shame and stigma are significant issues that ex-offenders must contend with. Practically from the moment they’re born, black males in ghettos are treated like criminals. It’s possible to learn to cope with the stigma of criminality, but when it’s paired with the stigma of race, it becomes nearly insurmountable. The social exile is permanent; as one exasperated woman wondered after being denied rental housing due to a minor conviction she wasn’t even aware was on her record, “Am I going to be a criminal for the rest of my life?”
It is tragically common to hear politicians, media pundits, and celebrities complain that the greatest problem with black men is that they “have no shame.” This couldn’t be further from the truth. A major ethnographic study about mass incarceration in Washington, D.C. — a city where three out of four young black men can expect to be incarcerated — found that young men labeled criminals and their families actually experience profound pain and stigma from their status. Similar studies across the country have corroborated these finding. “Shamelessness” is not the problem. Alienation, isolation and distrust under this racial caste system are the true culprits.
David Braman’s ethnographic research has shown that, despite the widespread experience of mass incarceration in communities of color, the stigma of criminality has generated shame and silence. People blame themselves for their children’s fate, or they keep quiet to protect others they love — believing falsely that they are alone in their experiences. The result is that many people suffer through the pain and trauma alone.
Even the church, which was once an important force in uniting and energizing communities around justice during the Civil Rights Movement, can now reinforce narratives around “good, black Christian folk” that can cause families incremental pain and isolation. Imprisonment is widely regarded as a personal, moral failure.
Self-loathing is commonplace in ex-offenders who have come to feel the deepest effects of the stigma of criminality. One outcome of this is a form of denial through silence, or at times through blatant lying (including on job applications) about one’s criminal background. This silence brings repression and collective denial, which make it “seem as though [ghetto families] simply are ‘that way’: broken, valueless, irreparable.” And it makes it that much more difficult for community healing and collective political action to occur.
It may seem counterintuitive that something as commonplace as incarceration in black communities is still so severely stigmatized. However, the reality is that the pervasiveness of imprisonment has not brought forth a perception of it being “normal.” Poor communities of color want safety, health, employment, and strong communities, just like everyone else. This may come as a surprise to those who predictably ask: What about gangsta rap and the romanticized culture of violence? Has the black community lost its moral compass?
It’s easy to say yes and admonish those who behave poorly. “Personal responsibility” is the narrative that has come most often from politicians, ministers, celebrities and even family members in black communities. The culpability for any loss of a moral compass, however, belongs to the larger society that has selectively created these crimogenic conditions and then punished those trapped within them. As Michelle Alexander frames it, “Are we willing to demonize a population, declare a war against them, and then stand back and heap shame and contempt upon them for failing to behave like model citizens while under attack?”
This is not to excuse the glorification of violence or misogyny in “gangsta culture.” It’s better to consider it in the context of how marginalized social groups empower themselves by embracing their stigma; this can be understood through examples like “gay pride, or “black is beautiful.” For black youth, embracing the stigma of criminality is an act of resilience and resistance. The paradoxical and harmful nature of owning certain elements of this culture, of course, is that criminality cripples the community and doesn’t help individual offenders.
The Minstrel Show
Again, while there is no excuse for violence or misogyny pervading what has come to be perceived as gangsta culture, there is additional context that should be illuminated. The prevailing imagery that defines public conception of gangsta culture often comes from BET, black-themed television shows and the worst of gangsta rap. These engender a form of blaxploitation (e.g. VH1’s Flavor of Love) that can be understood as a modern-day minstrel show. These for-profit displays perpetuate the worst kinds of racial stereotypes in the era of mass incarceration. The result is a broad public sense that black people are violent, oversexed, undeserving criminals.
Minstrel shows in the Jim Crow and slavery eras were designed for white audiences. So too are many of the worst forms of media blaxploitation of today (white, suburban teenagers account for the majority of gangsta rap consumers, and ratings have indicated the same trend for shows such as Flavor of Love). Racial stigma is a profitable endeavor. Black people are obviously complicit in the creation of these media, but the reasons why are complex.
Unbeknownst to many people, African Americans willfully encompassed a large fraction of minstrel show audiences. It has been hotly debated why black people would attend these blatantly racist events that were specifically designed to legitimize racism. Some scholars have theorized that blacks may have felt “in on the joke,” whereas others may have still felt some connection to the suddenly visible elements of long-suppressed African culture — even if they were presented in a racist manner. The simple act of seeing African Americans onstage was also significant, since there had never been a large-scale opportunity for them to participate in show business.
Historians may very well study the same involvement of black men in certain gangsta rap videos with similar curiosity someday. That said, it is crucial to recognize that many hip-hop artists today don’t perpetuate negative racial stereotypes associated with mass incarceration. Chance the Rapper, for instance, donated $1 million to Chicago public schools last year. Artists like Talib Kweli are actively engaged in grassroots activism, as well as spreading awareness through their music. Some of the most prominent emerging hip-hop artists today consistently create art that centers around social justice — from Jamila Woods to Kendrick Lamar to Noname, hip-hop culture is flourishing with creators who profoundly defy the negative stereotypes that mainstream society has attributed to their genre. Moreover, the true origins of rap and hip-hop are rooted in the struggle for societal outcasts to forge a positive identity.
The context of mass incarceration does negate the ability for any individual to exercise free will. But no one is perfect, and each of us struggles and makes mistakes. Society heaps tremendous blame and punishment onto those who falter and stray from the “right” path, while it largely ignores those who miraculously manage to survive and sometimes even thrive, despite the difficulties they’ve endured. The saying, “You gotta hate the crime, but love the criminal,” speaks to the only way forward and through the horror of mass incarceration. Love, care, compassion and concern, despite racial differences, is the only hope for defeating the new system of racialized control.
The New Jim Crow
During his presidential candidacy, Barack Obama gave a speech on Father’s Day at the Apostolic Church of God in Chicago. His message was clear: “If we are honest with ourselves, we’ll admit that too many fathers are missing — missing from too many lives and too many homes. Too many fathers are MIA. Too many fathers are AWOL. They have abandoned their responsibilities. They’re acting like boys instead of men. And the foundations of our families are weaker because of it. You and I know this is true everywhere, but nowhere is this more true than in the African American community.” The media reacted with surprise that black congregates enthusiastically applauded this message.
What the media neglected to ask, and what Obama neglected to tell, was where those missing fathers might be found. There is a prominent discourse around the theme of “missing black fathers,” which closely mirrors debates around the lack of eligible black men. Most black women — including 70 percent of professional black women — are unmarried. A common refrain from frustrated black women around the difficulty in finding partners is, “Where have all the black men gone?” And while the sense that black men have simply “disappeared” is based on reality, it typically disregards what the fairly obvious root cause of that absence is.
In 2002, a report from the U.S. Census Bureau found a gender gap of 26 percent between African Americans, with almost 3 million more black adult women than men across the United States. In certain urban areas, that disparity can rise to over 37 percent (which is approximately the gap for New York City). For comparison, the gender disparity for whites is 8 percent in the United States. And while a million black men can be found in prisons and jails across the country, rarely is that fact invoked in conversations about where the black man has mysteriously disappeared to. Black men didn’t walk out on their families due lack of commitment; they left in handcuffs, after which they are warehoused in cages, thanks largely to the War on Drugs.
More African Americans are in prison, jail, or on probation or parole today than were enslaved in 1850 — a decade before the beginning of the Civil War. Owing significantly to the effects of mass incarceration, “a black child born today is less likely to be raised by both parents than a black child born during slavery” (106). The existence and success of figures like Barack Obama and Oprah Winfrey do not represent widespread racial triumph. In reality, more people are disenfranchised today than 1870 — the year the Fifteenth Amendment was signed into law, prohibiting denial of the right to vote based on race. Today, young black men may be just as vulnerable to discrimination across employment, housing, public benefits and jury service as they would’ve been in the Jim Crow era. And since it’s based on their criminal record, it’s entirely legal.
Mass incarceration operates now as a well-oiled machine. In fact, if you’re a white, middle-class person, you may not even know the drug war is still going on. So efficiently systematized has the War on Drugs become, it no longer even requires the kind of racialized rhetoric around crime and drugs that was employed so vigorously through media campaigns in the 1980s and 1990s. The circumstances (including racial stereotypes and assumptions) for mass incarceration have been normalized and internalized in every cross-section of American life and culture. And still it is possible for so many to genuinely wonder, “where have the black men gone?”
States of Denial
It is reasonable to wonder how it’s possible that so many Americans could be unaware of a system wreaking so much destruction on such a substantial portion of our own population. The circumstances for this are incredibly complex. Denial has been facilitated by racial segregation in housing and schools, racialized media imagery, political corruption, and the ease of desensitization — to simply change the channel and turn away from the suffering of others. Those warehoused in prisons are out of sight and out of mind. Once they return to society, they’re relegated predominantly to ghettos, where they remain disconnected from the awareness of most Americans in mainstream society. What most Americans do know and understand is likely to come from the mediated images they consume — gangsta rap, evening news stories and so on. These depictions often reinforce a consensus that what happens to “those people” is what they deserve.
Racism has also adapted through the decades. Many assume that overt racial hostility would have to be present in order for a system to function like a racial caste. But this is a misunderstanding; one which the officially colorblind nature of mass incarceration is well served by. The American imagination around racism is one that envisions lynchings, “whites only” signs and racial slurs. However, these individual behaviors, attitudes and stereotypes are not the only manifestations of racism. It can also be deeply woven into the basic structure of society. It is irrelevant whether each aspect of a racial caste system was deliberately created to control black people; various laws, institutions and practices now work together in the elaborate system of mass incarceration to trap African Americans in literal and figurative cages.
In addition to today’s racial caste system being more durable than its predecessors, it’s also easier to maintain and defend due to its “colorblind” rhetoric. This allows the rest of society to ignore the ways in which individuals are trapped in the system, and to convince themselves that those afflicted merely chose that way of life. But the truth is that the system has been meticulously structured to ensure that vulnerable people who are swept into this system are subordinated and marginalized.
How It Works
Mechanisms of the War on Drugs were explained in detail above, but a concise reminder of the high-level overview can be helpful. The first step is the roundup; police target poor communities of color in drug operations, sweeping large swaths of people into the criminal justice system. They are incentivized through grants and drug forfeiture laws, and they have discretion to operate virtually unconstrained in their enforcement. They can use race as criteria for target selection, and despite similar rates of drug abuse across all racial lines, ultimately pursue primarily black and brown people in poor communities.
The second phase is the period of formal control. Defendants are denied meaningful representation and coerced into taking plea bargains, regardless of whether they’re guilty or not. Prosecutors also wield discretion to “load up” charges against them (heaping on pressure for the accused to consider otherwise unfavorable plea bargains), and it is not possible to challenge their decisions for racial bias. Then offenders will be locked behind bars for a period of control that can last up to a lifetime. Sentencing laws in the United States are so stringent, that American drug offenders spend more time in jail or prison and on probation or parole than drug offenders in any other country.
The final stage is sometimes referred to as invisible punishment. Ex-offenders will be legally discriminated against for the remainder of their lives. From education and public benefits to employment and housing, they will be forced to live on the margins. Despite calls for better programs of “re-entry,” the reality is that a huge population of black and brown people who attempt to rejoin society after being swept up in the War on Drugs are condemned to a permanent undercaste.
Neither racism nor postconviction penalties are new in America (or in the world). But today, the War on Drugs has created a system that targets and marginalizes entire communities of color. Nearly everyone in ghetto communities is directly or indirectly subject to the racialized caste system. The drug war is the system of control.
Chicago is an example of how the War on Drugs perpetrates mass incarceration and racial disparities in the criminal justice system. Black people account for about 90 percent of people sentenced to prison for drug offenses in Chicago. Whites are rarely arrested, but if they are, they receive better treatment across the spectrum of criminal justice; they’re likely to avoid prison and felony charges, including when they’re repeat offenders. In contrast, black offenders often are branded felons and become part of a permanent racial undercaste.
Shockingly, “the total population of black males in Chicago with a felony record… is equivalent to 55 percent of the black adult male population and an astonishing 80 percent of the adult black male workforce in the Chicago area… From the Chicago region alone, the number of those annually sent to prison for drug crime increased almost 2,000 percent, from 469 in 1985 to 8,755 in 2005” (112). Once they’re out, they must find their way despite widespread discrimination in virtually every aspect of their lives. This is the same city where young black men are more likely to go to prison than college — as of June 2001, there were almost 20,000 more black men in the state prison system than enrolled in public universities in Illinois.
Mapping the Parallels
Familiar mechanisms of stigma and shame are manifested through systematic control over the new racial undercaste in every aspect of economic and social life. The similarities between the current system of mass incarceration and Jim Crow are ample (and the following section will explore the limits of the analogy):
Historical parallels: Both caste systems emerged through white elites exploiting the “resentments, vulnerabilities, and racial biases of poor and working-class whites for political or economic gain” (113). Segregations laws deflected anger against the white elite onto African Americans. Conservatives followed suit in the 1970s and 1980s, appealing to the same groups through racially coded rhetoric around crime and welfare. An unfortunate culmination to both situations is that neither yielded any kind of meaningful economic reforms to address the anxieties of the poor and working-class whites. Instead, the deflection of anger onto black communities was the prevailing “solution” offered.
Legalized discrimination: Each year, Americans celebrate what they largely hail as the end of racism during Black History Month. Schoolchildren sit in awe, contemplating how legalized discrimination could ever have taken place in the land of the free. Few could fathom that this discrimination still exists — it has simply morphed into the label of “felon” instead of “black.” Mass incarceration has pushed millions of black men into a position not unlike Jim Crow, where they are legally barred from integrating into mainstream society.
Political disenfranchisement: Poll taxes, literacy tests, disenfranchisement laws and grandfather clauses prevented African Americans from voting en masse during Jim Crow — despite the passage of the Fifteenth Amendment. Poverty prevented most from being able to pay poll taxes (where grandfather clauses allowed whites to vote without meeting those requirements), and arbitrary felonies disenfranchised a considerable number of remaining eligible black voters. After Jim Crow collapsed, “race-neutral” devices have continued the systematic disenfranchisement of blacks, provided there is no overt racial bias underpinning the efforts. The disenfranchisement laws targeting felons today have been even more successful in eliminating black voters than they were during Jim Crow. One in seven black men in America has lost the right to vote, with as many as one in four in states with the highest disenfranchisement rates for African Americans. These numbers don’t even do justice to the full impact of the various fines and fees implemented across many states against ex-felons attempting to restore their voting rights.
Another parallel that resembles slavery more than Jim Crow is the usual-residence rule. The Census Bureau counts prisoners as residents of the jurisdiction in which they are incarcerated. Most new prison construction happens in predominantly white and rural areas, which taints the redistricting process. Poor communities of color lose representation when it appears their population has declined, and white rural communities benefit. This is reminiscent of the three-fifths clause in the original Constitution; by including 60 percent of slaves in the population base, slaveholding states could increase their political representation and voting power, despite disallowing slaves from voting.
Exclusion from juries: All-white juries trying Southern black defendants were a hallmark of the Jim Crow era. Technically, it’s been illegal since 1880 to remove jurors based on race; but today, much like in the Jim Crow era, courts are able to accept “silly” and even “superstitious” rationale for striking black jurors. And a sizable percentage of black men (approximately 30 percent) are automatically excluded from participation in juries due to felony records. The combination of these two factors has put many black defendants back in a nefarious place, where they’re shackled in a courtroom in front of an all-white jury.
Closing the courthouse doors: The Supreme Court historically has protected racial caste systems, and then later dismantled them based on the political and social climate. For instance, the Court prevented slavery from being challenged in Dred Scott v. Sanford and established “separate but equal” doctrine through Plessy v. Ferguson. Today, McCleskey v. Kemp functions the same way. The courthouse doors have closed to any claims of racial bias throughout the criminal justice process. The Fourteenth Amendment can no longer protect those who are most vulnerable in the new racial caste system.
Racial segregation: During Jim Crow, segregation relegated blacks to the worst parts of town. These places often lacked basic public services like roads (roads suddenly shifting from pavement to dirt at the borders of ghettos), water and sewer systems. Whites were almost entirely oblivious to the extreme poverty suffered by blacks, as long as they remained in their neighborhoods (which they had every reason to do). The separation allowed for racial stereotypes about black people to remain unchallenged in the minds of whites. Denial or ignorance of the plight of black people was facilitated by the physical separation of communities.
Segregation has been achieved once again through mass incarceration. Sequestering prisoners — most of whom are black and brown people — behind bars, far from home, makes it so the majority of Americans rarely ever even see prisons. 60 percent of new prison construction happens in rural counties, despite the fact that those areas contain just 20 percent of the U.S. population. In a way, mass incarceration is even more severe than Jim Crow, since it doesn’t just push black people to ghettos, but instead traps them inside cages.
In the age of mass incarceration, however, racial segregation transcends the gates of prison. Ghettos remain an unfortunate trap for many communities of color. The white poor have a markedly different experience than do poor people of color in the United States; one study from New York City found that “70 percent of the city’s poor black and Latino residents live in high-poverty neighborhoods, whereas 70 percent of the city’s poor whites live in nonpoverty neighborhoods — communities that have significant resources, including jobs, schools, banks and grocery stores. Nationwide, nearly seven out of eight people living in high-poverty urban areas are members of a minority group” (116). Mass incarceration and being labeled a felon closes the circuit that all but guarantees people of color will remain trapped between ghettos and prisons.
Symbolic production of race: The meaning of race in America has transformed through each phase of racialized control. Slavery defined blackness as subhuman and fundamentally subservient to whiteness (and therefore exploitable), Jim Crow defined blackness as an inferior, second-class citizenry (rendering blacks subordinate), and mass incarceration defined blackness as being criminal and deserving of being cast aside (marginalization). Narratives around personal choice may seem seductive to give into, but they should be approached very skeptically. Blacks are not significantly more likely to use or sell illegal drugs, but they are criminalized at dramatically higher rates. All ethnic groups violate drug laws, but blacks are selectively targeted and then made criminals in the War on Drugs. The racial stigma that has emerged from this has been devastating to black communities.
A good checkpoint for considering how blackness has come to be perceived as closely interwoven with criminality is to pose to someone the following: “We really need to address the problem of white crime.” Confusion or laughter would be the likely reaction to such a statement. White crime is perceived as a joke, unless it’s in the context of white-collar crimes. Meanwhile, black criminal sounds almost redundant (refer back to the study referenced where most participants pictured an offender as being black). This may shed some light on studies that show white ex-offenders may actually have an easier time procuring jobs than black without criminal records. To be black is to be perceived as criminal. It’s by no means easy to be a white criminal either, but white criminals don’t deal with the additional impediments that come with being a racial pariah.
The Limits of the Analogy
While there is a longer list of similarities linking mass incarceration to its predecessors of Jim Crow and slavery, there are also myriad differences between them. Somewhat counterintuitively, a main difference between them is not that Jim Crow was explicitly race-based whereas mass incarceration is colorblind; in fact, many policies in the structure of Jim Crow were also officially race-neutral. Laws (such as poll taxes) can appear neutral, but then enforcement happens in a highly discriminatory manner. Racial stigma has also impacted black communities differently today than it did during Jim Crow. Whereas Jim Crow laws created solidarity in the black community, racial stigma today has ripped apart many of these communities and erected walls of shame and silence among those worst affected by the caste system. Other key differences include the following:
Absence of racial hostility: While today the caste system is not orchestrated by slave masters or the Ku Klux Klan, racial hostility and violence have by no means disappeared. However, that hostility has shifted forms so that it is instead expressed through police brutality, solitary confinement, and racially-selective applications of the death penalty. There is also cogency to the fact that a black child today can dream of being president of the United States — a feat which would never have been imaginable during Jim Crow. Mass incarceration is not “just like” Jim Crow; most Americans have opposed race discrimination since the early 1980s. That is a huge shift from segregationist thinking.
The underpinning of today’s racial caste system is racial indifference (ambivalence or lack of compassion around race and racial groups). This was still a factor the architecture of previous racial caste systems, but today it is unmistakably more prevalent than overt racial hostility. As Martin Luther King Jr. once declared, “Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity.” Hostility is not a prerequisite for oppression. Well-intended people or people driven predominantly by greed are still capable of participating, knowingly or unknowingly in systems of racial oppression.
White victims of racial caste: An important distinction between today’s system of mass incarceration and the racial caste systems that preceded it is that white are directly harmed by the current system (although, a caveat to this is that whites could still be harmed during Jim Crow through policies like anti-miscegenation laws, if they were partnered with a person of color). Whites didn’t have to sit at the back of the bus, but they could easily find themselves incarcerated today for minor drug offenses. That is the nature of a racial caste system that exists in the age of colorblindness.
There is no way that the War on Drugs would have gone as far as it has if 100 percent of the people arrested and convicted for drug offenses were black. The number that Americans are apparently comfortable with for that benchmark is instead around 90 percent of convicted drug offenders being black in certain states. Regardless, the inclusion of a multiethnic underclass is pivotal for retaining the façade of colorblindness.
It’s almost impossible to imagine anything resembling mass incarceration happening to young white men. The selective way that compassion is extended to some and withheld from others can be observed through the example of how the nation broached the drunk driving epidemic in the 1980s. Mothers whose families were destroyed by drunk driving-induced deaths started a grassroots movement around the same time that crack was making headlines. The Carrollton bus disaster in 1988 involved a drunk driver colliding head-on with a school bus, killing twenty-seven people. Media regularly covered the issue, and the term designated driver was coined to encourage healthier behavior.
By 1990, drunk drivers caused 22,000 deaths annually, and overall alcohol-related deaths neared 100,000 per year. There were no prevalent statistics on crack-related deaths at that time. The total of all drug-related deaths (including AIDS, overdose, or violence tied to the drug trade) was estimated at 21,000 per year. These deaths accounted for less than the number of drunk driving-related deaths (and represented only a small fraction of overall alcohol-related deaths), but the sentencing disparities between crack and drunk driving tell a different story. Many states adopted mandatory sentencing for drunk driving in response to advocacy efforts in the 1980s. Typically that is two days in jail for first-time offenders, and two to ten days for second offenses. Compare that to the mandatory minimum sentence of five years in federal prison for first-time offenders who possess a trace of crack.
Why were drunk drivers perceived as deserving greater leniency? 78 percent of the arrests for drunk driving were white males in 1990 when mandatory minimums for drunk driving were being adopted. Often these charges are misdemeanors, with sentences including fines, suspension of licenses, community service and rehabilitation programs.
This dynamic is replicated today in the opioid epidemic; as more white people have fallen victim to illegal drug addiction, the media and political tone around dealing with drug addiction (opioids in particular) have softened and turned more towards rehabilitation than punitive measures. Government-funded safe injection sites (which are beneficial for public health and generally a compassionate approach to dealing with a drug abuse crisis) would never have held an equivalent for black youth battling crack addictions in the 1980s.
Black support for “get tough” policies: Another distinction between Jim Crow and the current system of control is that there is a certain level of support among African Americans for the latter. Proponents of mass incarceration argue that crime in ghetto communities necessitates intervention of law enforcement. The problem with mass incarceration, however, is not the conceptual intervention of government in community affairs to curb crime, but instead the harsh and punitive approach it has taken. Rather than intervening with assistance in the form of economic development or restorative justice programs or educational reform, the government initiated a war in these communities. Studies consistently show that African Americans are less supportive of harsh criminal justice policies than whites, despite their greater likelihood of being victims of crime (which is also interesting, since punitive attitudes spike among those with lower educations, and black people disproportionately tend to have less education than whites). Black people may understandably support lowering crime in their communities, but not through the “get tough” tactics employed in the War on Drugs.
That some black people have endorsed harsh punishments for crime is better understood as complicity with mass incarceration, rather than full-blown support. There is reason for African Americans to fear violent crime, as it is concentrated in ghetto communities where a disproportionate number of people of color are trapped. Studies indicate that “joblessness — not race or black culture — explains the high rates of violent crime in poor black communities. When researchers have controlled for joblessness, differences in violent crime rates between young black and white men disappear” (123). Some level of complicity with the system also serves as a protective mechanism today, as it did during the days of Jim Crow — it is safer to not challenge the status quo when you are disempowered.
Racial caste has evolved from exploitation (slavery) to subordination (Jim Crow) to marginalization (mass incarceration). Marginalization may be the most dangerous system yet. Scholars who have studied genocide trace tragedies like the Holocaust or ethnic cleansing in Bosnia to extreme marginalization and stigmatization of specific racial and ethnic groups. Legal scholar john a. powell once remarked, half-jokingly, “It’s actually better to be exploited than marginalized, in some respects, because if you’re exploited presumably you’re still needed.” A sense of being disposable has pervaded poor black communities, where they are warehoused in prisons and ghettos.
The Fire This Time
More than ten thousand protesters descended on Jena, Louisiana on September 20, 2007, following the attempted murder charges filed against six black teenagers who allegedly beat their white high school classmate. A string of racially charged conflicts and controversies had shaken the school, including nooses hanging from a tree in its main courtyard. Many believe the attack was related to these incidents, and for a moment, the media and national attention were fixed on the “Jena 6.” The grassroots movement paid off, and despite the prosecutor’s refusal to back down from bringing adult charges against the children, an appellate court ruled that they would be tried as juveniles, and most of the charges were reduced or dropped.
The spectacle may have been disturbing to parents whose children were tried as adults and locked up in prison for far less serious crimes, such as minor drug offenses. Where was the promise of a “new civil rights movement” when black kids were serving decades behind bars for nonviolent drug offenses? It’s reasonable to assume that, had there not been nooses hanging from a schoolyard tree, there likely wouldn’t have been the uprising and attendant media coverage that allowed for a more just end-result for the 6 black boys involved.
The only way for mainstream America to comprehend the charges as racist was for there to be an old-fashioned symbol of racism that they understood to be unmistakably and overtly racist. And that is precisely the issue that has prevented a new civil rights movement from forming. It’s one of the most troubling reasons why Black Lives Matter faces such fierce opposition; in the age of colorblindness, without a noose or a “whites-only” sign, it’s all too easy to dismiss allegations of racism as being overblown or altogether nonexistent.
Rethinking Denial — Or, Where Are Civil Rights Advocates When You Need Them?
Considering the emergence of Black Lives Matter in the years since Michelle Alexander published The New Jim Crow, this section, where she decries the silence and absence of many civil rights leaders in the fight against mass incarceration, is now clearly outdated. But the history of how civil rights leadership weakened and trailed off after the Civil Rights Movement is still important to understand. The adoption of legislation like Brown v. Board of Education or the passage of the Civil Rights Act of 1965 infused early on a sense that lawyers were the most powerful and influential players in racial justice advocacy. In time, as grassroots movements morphed into legal campaigns and civil rights leaders became political insiders, organizations became top-heavy with lawyers.
Advocating for criminals has always been something that civil rights advocates have been reluctant to do. Even during Jim Crow, NAACP lawyers hesitated to advocate for black clients unless they were convinced of a person’s innocence (with the notable exception of anti-death penalty advocacy). The narrative of the “perfect” victim has long been internalized in the American public, wherein mainstream Americans are likely to recognize the presence and injustice of racism only if the victim defies racial stereotypes and can be easily understood as “good” and “respectable” by whites.
Rosa Parks’ story is a potent example of this. In fact, she was not the first person to defy segregation laws by refusing to give up her seat in Montgomery, Alabama — she just happened to be the first one with an impeccable, perceptibly “failsafe” record. Claudette Colvin and Mary Louise Smith had done the same thing just months before Rosa Parks, but civil rights advocates rejected them as plaintiffs when putting together their test case for challenging segregation laws. Shortly after Colvin’s arrest, she became pregnant by an older man, which advocates worried would make her seem “immoral” and detract from their efforts. Mary Louise Smith had a father who was rumored to be an alcoholic, so she was also denied as a plaintiff. Not only the litigant, but the litigant’s family must also appear to be beyond criticism if they are to prove they are “unworthy” of unequal treatment.
The extant impact of the “perfect victim” mentality ring through more recent civil rights and criminal justice cases as well. Trayvon Martin, for example, was an unarmed black 17-year-old kid walking home when he was shot by George Zimmerman. Heated public debates following his murder (for which Zimmerman was acquitted) focused on his wearing a hooded sweatshirt, as well as the trace amounts of marijuana in his system as “justification” for the incomprehensibly cruel punishment he was doled out — for no crime whatsoever. The threshold is low for whatever expectations or norms a person of color must violate to “deserve” their plight in the minds of the mainstream American public.
Focusing on “perfect” victims has not served the greater cause of fighting racial injustice. Nor has focusing on battles that appear more easily won, such as affirmative action. In many ways, African Americans are no better off than they were in 1968. The notion that the Clinton years were prosperous for African Americans (that “a rising tide lifts all boats”) is patently false. Oprah’s rise to wealth doesn’t negate the fact that unemployment rates among black men without college educations in their twenties reached their highest levels ever in the late 1990s.
People may misconstrue the economic progress (or lack thereof) of African Americans as a group, due to the omission of incarcerated people from poverty and unemployment statistics. The 1990s were extolled as an economic boom for America, but the unemployment rate for noncollege black men at that time was 42 percent (and 65 percent for black male dropouts). Focusing on the success stories of the minority of black people that have managed to extricate themselves from the worst elements of today’s racial caste system does absolutely nothing to impede its grip.
Tinkering Is for Mechanics, Not Racial-Justice Advocates
Mass incarceration has become so pervasive, the new caste system will not tumble by the weight of isolated courtroom or legislative victories alone. Even if the goal was to return to the incarceration rate of the 1970s (when many civil rights advocates felt incarceration was already disturbingly high), we would need to release eighty percent of people currently behind bars today. And as Marc Mauer observed, this would create panic in rural communities whose economies rely on prisons; “The more than 700,000 prison and jail guards, administrators, service workers, and other personnel represent a potentially powerful political opposition to any scaling-down of the system. One need only recall the fierce opposition to the closing of military bases in recent years to see how these forces will function over time.”
Almost 2.4 million people were employed by the justice system in 2003. If 80 percent of people were released from prison, well over a million people could lose their jobs. Furthermore, prisons have become a powerful business in the private-sector. Wealthy people like former Vice President Dick Cheney have invested millions into private prisons. The mission of private prison companies is directly reliant on mass incarceration for success. When the prison expansion boom of the 1990s seemed to be leveling off, American Correctional Association President Gwendolyn Chun lamented, “We’ll have a hard time holding on to what we have now.” Her fears never came to fruition, however. Instead, the prison population broke new records in 2008, and the market has continued to expand.
Beyond private prison companies, other prison profiteers must be addressed if meaningful efforts to undo mass incarceration were to progress. This includes phone companies that gouge prisoners and their families by charging exorbitant rates for phone calls, gun manufacturers, private healthcare providers who provide (usually deficient) care to prisoners, and the U.S. military and corporations who leverage cheap prison labor to avoid paying livable wages. The bankers, lawyers and politicians who benefit from the building of new prisons in white, rural communities would also need to be reckoned with if we are to overturn the system of mass incarceration.
The War on Drugs must end. But this will not be simple or easy. Federal grants for drug enforcement must be revoked, racial profiling cannot be allowed to continue, drug forfeiture laws need to be tossed, militarized, targeted policing of poor communities must end, and no longer should military equipment be transferred to local law enforcement agencies. Law enforcement in general must work towards a cultural transformation that centers around compassionate and humane approaches to issues faced by the urban poor. Nationwide data collection of police and prosecutors ought to be mandated, as well as racial impact statements to assess impact of criminal justice legislation. Funding for public defenders must be brought to parity with prosecutor’s offices. Marijuana (and potentially other drugs as well) needs to be legalized nationwide, and re-entry programs should be adopted so that formerly-incarcerated people can reach for well-paying jobs and meaningful career paths. Drug treatment should supplant prison cells for drug offenders.
A formal, comprehensive movement must emerge if America is to subvert the racial caste system and prevent it from taking on new forms. Legal challenges alone are not enough; for example, after Brown v. Board of Education, segregation was maintained for ten years. Across South Carolina, Alabama and Mississippi, not one black child attended an integrated public school as of 1962 — eight years after the Supreme Court decision. Black school children attending integrated schools in 1964, a decade after Brown, accounted for a measly 1 percent. The legislation laid the groundwork but would have been hamstrung without the mobilization of a mass movement. There is profound hope that Black Lives Matter is the movement (or the foundation of a movement) that will help carry this mission forward.
Let’s Talk About Race — Resisting the Temptation of Colorblind Advocacy
There are a few key guiding principles that are integral to building a successful movement to end mass incarceration (as a system of racial control — there still must be an effective system of crime prevention and control in American communities, but that is not how the current system predominantly operates). For those who consider the current system to be a truly crime-centered system of prevention and control, the statistics largely suggest otherwise. Estimates of crime reduction attributable to mass incarceration range between 3 and 25 percent. Some scholars believe mass incarceration has now created more crime than it prevents. Rather than the prevailing assumption that poverty leads to crime and imprisonment, research actually suggests the reverse. And even if the 25 percent reduction was accurate, that would mean 75 percent of incarceration has had zero impact on crime. That abysmal impact reflects an annual $200 billion investment for its execution.
America can only move past the drug war and mass incarceration if we stop pretending that it is truly about crime, and not about race and economic insecurities. We must come to recognize the patterns of racialized control in our nation’s history, and how biases and resentments and economic insecurities have historically been exploited for political gain. We must collectively admit that it has been because of race that we were willing and able to ignore what was happening to “those people,” and begin to make amends.
Race makes many people feel uncomfortable. One study showed that “some whites are so loath to talk about race and so fearful of violating racial etiquette that they indicate a preference for avoiding all contact with black people” (135). The temptation to avoid discussing race is amplified due to the ever-growing opportunities to confront mass incarceration on race-neutral grounds. Many states have begun reducing or eliminating mandatory minimum sentences and developed drug treatment programs as alternatives for incarceration for certain drug offenders (like California, where Proposition 36 in 2000 mandated drug treatment instead of jail for first-time offenders statewide). Recreational marijuana is now legal in eight states and the District of Columbia. This is positive progress on some level, but racial justice advocates should not take the bait for race-neutral approaches to dismantling the War on Drugs. There is no real way forward without acknowledging the fallacy of colorblindness, and without reconciling the role race has played in these systems of control.
It used to be broadly considered a just goal for society to reach a sense of “colorblindness” in its conduct. However, the principle of colorblindness has been calamitous for African Americans. The War on Drugs would not have been possible if not for the rhetoric of colorblindness. Alexander notes that “the seemingly innocent phrase, ‘I don’t care if he’s black…’ perfectly captures the perversion of Martin Luther King Jr.’s dream that we may, one day, be able to see beyond race to connect spiritually across racial lines. Saying that one does not care about race is offered as an exculpatory value, when in fact it can be a form of cruelty. It is precisely because we, as a nation, have not cared much about African Americans that we have allowed our criminal justice system to create a new racial undercaste” (137).
Colorblindness prevents us from seeing mass incarceration, just as it prevents us from seeing unequal schools, jobless ghettos and public discourse that marginalizes the pariah caste. What colorblindness today means in America is less about blindness to race, and more about blindness to the existence of racial caste. Aspiring to colorblindness is neither realistic nor productive (nor humane). The goal of colorblindness fundamentally supposes that we are incapable of noticing racial differences and still treating each other compassionately. Color-consciousness is more optimistic than this; it’s possible to be cognizant of our racial (and other) differences and still care about one another — and even appreciate those differences.
The Racial Bribe
Affirmative action and other diversity initiatives pick up the slack where the free market and partisan politics fail. However, affirmative action has in some ways functioned more like a racial bribe over the last several decades than a meaningful tool of racial justice. The connection between affirmative action and mass incarceration is important to contextualize — the “cosmetic” achievement of racial diversity may have enabled mass incarceration and impeded the development of a more compassionate race consciousness.
This criticism is by no means an argument against affirmative action in general, or a denial of the impact that it has had in the lives of some poor and working-class African Americans; it is certainly not an argument that affirmative action should be reevaluated on the grounds of being “unfair” to white men (evidence strongly suggests that globalization, government cutbacks, downsizing, deindustrialization and wage declines have threatened the position of white men far greater than “reverse discrimination”).
When affirmative action is justified based on diversity instead of equity, it discounts the severity of racial inequality in America. The result is that the mere existence of black Harvard grads (or black presidents) cause many of us to marvel at how much progress we’ve made. But recent data shows this progress is largely distorted. Almost one in four African Americans live below the poverty line today, which is about the same percentage as in 1968. The child poverty rate for African Americans has risen since then. And unemployment rates in black communities look more like those in Third World countries — despite affirmative action.
Without affirmative action, circumstances would be undoubtedly worse. One study confirmed that without race-based admissions policies, black matriculants would decrease 63 percent across all law schools. That number jumped to 90 percent for elite law schools. We need affirmative action for now (and maybe forever), but it doesn’t solve all the problems.
Black exceptionalism is in the foundation of today’s colorblind system of control. Since a black man can be elected president, that means that mass incarceration must hinge upon the personal moral failures and choices of those locked up, rather than systemic barriers. The black people who manage to gain exceptional opportunities often legitimate the racially biased system — particularly when they ignore or neglect to challenge the prevailing racial order. Americans love token or exceptional African Americans who don’t address race or racial inequality.
Another counterproductive mechanism of affirmative action is the way in which it perpetuates a trickle-down theory of racial justice. It is untrue that giving a tiny fraction of people of color access to important positions or institutions will make it systemically better for all other people of color. Martin Luther King Jr. explicitly warned against this, advising that superficial changes would not be able to create meaningful change, and that true racial justice would necessitate the complete transformation of social institutions and a restructuring of the economy.
Modern police forces are a testament to the limited capacity of affirmative action to incite meaningful social change. More than ever, police departments have come to reflect the demographics of the country, even as they’ve played a leading role in waging a war against people of color. Even when people of color gain access, rarely does that mean the institution itself can be easily transformed. The existing hierarchy disciplines outsiders when they come in, and typically requires them to prove themselves under the old rules in order to survive. Newcomers have a lot to lose and little to gain by standing up to the incumbent model.
Some reports show that minority officers engage in racial profiling nearly as much as white officers. This may come as a surprise to some, but the greater shock is that any minority officers have been willing to speak out against the practice at all, given how entrenched the War on Drugs has become. How can we expect the select few minorities in police departments whose very livelihoods depends on them waging a drug war against poor communities of color to speak out against it? Tokenism and histories of racial subjugation have made it so that successes and failures are often collectively shared in marginalized communities as well; black community residents or officers may worry about “hurting” a black police chief if they speak out against abusive practices. This is the true limitation of cosmetic diversity; the mere existence of people of color in oppressive institutions does not make the character or nature of those institutions any more just or meaningful.
Obama — the Promise and the Peril
Barack Obama admitted to experimenting with drugs. Had he been arrested, there’s little chance he would have gone to Harvard Law School or become president of the United States. But it would have been a mistake to assume that his experimentation with drugs and his recognition of his privilege in avoiding getting caught in the criminal justice system meant that he was bound to be a major proponent of racial justice or criminal justice reform. Among his cabinet choices were Joe Biden and Rahm Emanuel, both of whom were major proponents of the drug war. The man he tapped to lead the Department of Justice (which oversees the War on Drugs) was a leader in waging the drug war in Washington, D.C., who fought arduously to impose mandatory minimum sentences for marijuana possession.
President Obama pledged to revive President Clinton’s Community Oriented Policing Services (COPS) program to march forward with the drug war. It’s easy (and fair, to some degree) to argue that this is mere “politics” that Obama played into, but it does not undermine the ways in which he perpetuated the War on Drugs. And that is precisely the fallacy of assuming that just because a person of color comes into power, that they will invariably have the desire, will or means to transform the institutions they’ve managed to penetrate.
All of Us or None
A grassroots organization out of Oakland, California, called All of Us or None, engage in community activism and provide services for newly-released prisoners. The name of their organization is a denunciation of the trickle-down model of diversity-driven affirmative action model (where “some of us” gain access) and emphasizes solidarity with the “least of these among us.” But the critical question for moving forward in civil rights is: who does the us represent? The answer appears to be everyone except white men — but that is not the case.
Malcolm X frequently criticized “the white man,” but he was not referring to any individual. He was referring to the white, patriarchal order that had propelled slavery and Jim Crow. His wording was an acknowledgement that this country was created by and for privileged white men; that they dominated politics and wealth, and that they were the decision-makers in framing how everyone else was forced to live. But white men have suffered too.
While the nature of white men’s suffering isn’t the same as that of blacks, it is nonetheless very real. The 1950 census showed that white Southern farmers in their late twenties overlapped blacks in rates of functional illiteracy. Most were better off than Southern blacks, but that didn’t mean they were wealthy or educated. But they did have what W.E.B. Du Bois calls “the public and psychological wage” offered to white workers, where they were afforded status and privilege based on their race to compensate for their unsatisfactory wages and working conditions.
It is time to reconcile “us and them,” and create an “us” that is truly inclusive of everyone. Martin Luther King Jr. attempted to push the nation in that direction through the Poor People’s Movement in 1968. He argued that “a human rights approach…would offer far greater hope for those of us determined to create a thriving, multiracial, multiethnic democracy free from racial hierarchy than the civil rights model had provided to date. It would offer a positive vision of what we can strive for — a society in which all human beings of all races are treated with dignity, and have the right to food, shelter, health care, education, and security” (147). This could allow for alliances across race and class, where scarcity and competition no longer define the fabric of our society.
There is a way forward, and we can and must do better. And for those of us who wish to be allies, it is time to listen and to step up. Michelle Alexander emphatically closed with the following passage from James Baldwin’s The Fire Next Time, addressed to his young nephew:
This is the crime of which I accuse my country and my countrymen, and for which neither I nor time nor history will ever forgive them, that they have destroyed and are destroying hundreds of thousands of lives and do not know it and do not want to know it….. It is their innocence which constitutes the crime…. This innocent country set you down in a ghetto in which, in fact, it intended that you should perish. The limits of your ambition were, thus, expected to be set forever. You were born into a society which spelled out with brutal clarity, and in as many ways as possible, that you were a worthless human being. You were not expected to aspire to excellence: you were expected to make peace with mediocrity…. You have, and many of us have, defeated this intention; and, by a terrible law, a terrible paradox, those innocents who believed that your imprisonment made them safe are losing their grasp on reality. But these men are your brothers — your lost, younger brothers. And if the word integration means anything, this is what it means: that we, with love, shall force our brothers to see themselves as they are, to cease fleeing from reality and begin to change it. For this is your home, my friend, do not be driven from it; great men have done great things here, and will again, and we can make America what it must become. It will be hard, but you come from sturdy, peasant stock, men who picked cotton and dammed rivers and built railroads, and, in the teeth of the most terrifying odds, achieved an unassailable and monumental dignity. You come from a long line of great poets since Homer. One of them said, The very time I thought I was lost, My dungeon shook and my chains fell off….. We cannot be free until they are free. God bless you, and Godspeed.
If you are interested in next steps and discovering how you can help, I recommend checking out this article. Most importantly, listen, learn, teach, and show up to support racial justice in whatever ways you can — join protests, Black Lives Matter marches, racial justice organizations, and support equity in your community. Education is the best place to start for those just coming in, so I am providing a list of recommending resources below to help grow your understanding:
· 13th (documentary available on Netflix)
· “The Problem We All Live With,” This American Life (two-part podcast about modern segregation in schools available here)
· “The Case for Reparations,” by Ta-Nehisi Coates for The Atlantic (available here)
· The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle Alexander
· Women, Race and Class by Angela Davis
· Just Mercy: A Story of Justice and Redemption by Bryan Stevenson
· From #BlackLivesMatter to Black Liberation by Keeanga-Yamahtta Taylor
· Writing My Wrongs: Life, Death, and Redemption in an American Prison by Shaka Senghor
· Americanah by Chimamanda Ngozi Adichie
· I Know Why the Caged Bird Sings by Maya Angelou
· The First Civil Right: How Liberals Built Prison America by Naomi Murakawa
· Born a Crime: Stories From a South African Childhood by Trevor Noah
Sources for this essay:
The New Jim Crow: Mass Incarceration in the Age of Colorblindness by Michelle Alexander
From #BlackLivesMatter to Black Liveration by Keeanga-Yamahtta Taylor
The Sentencing Project (various statistics)
ACLU (various statistics and graphic in header)