Part 3: Then came mass incarceration.

*This post is part of a three-part series. Click here to start from the beginning. Note that some posts in this series directly quote offensive racist language and they all describe upsetting historical realities that may be triggering to readers.

Part 3 | Introduction

As of 2016, only 28% of white Americans thought the government should take a major role in trying to improve the social and economic role of racial minorities in America. Nearly half of white Americans (43%) did not feel that racism against Black Americans was widespread. Nearly 80% of white Americans felt that police treated Black Americans fairly or very fairly. When asked whether higher rates of imprisonment in the Black community were due to discrimination or something else, 80% of white Americans said “something else.”

Many Americans, especially white Americans, have come to believe that racism is a thing of the past — that after the civil rights movement, it more or less disappeared. Unfortunately though, as scholar Michelle Alexander and others have written, in the same way that Reconstruction was followed by a severe racist backlash and the advent of Jim Crow laws, the civil rights movement and the fall of Jim Crow was followed by the creation of a new system of oppression: mass incarceration.

During the 1950s and 1960s, as the civil rights movement gained traction, it became clear to Republican politicians and segregationists that there was something to be gained in exploiting rising racial tensions and the fears of the white working class to garner votes. They developed the “Southern Strategy,” a political strategy that aimed to gain political support among white southerners by tapping into racial prejudice while using socially acceptable, race-neutral language. Long-time Republican political strategist Lee Atwater explained the Southern Strategy in a 1981 interview: “You start out in 1954 by saying, ‘Nigger, nigger, nigger.’ By 1968 you can’t say ‘nigger’ — that hurts you. Backfires. So you say stuff like forced busing, states’ rights and all that stuff. You’re getting so abstract now [that] you’re talking about cutting taxes, and all these things you’re talking about are totally economic things and a byproduct of them is [that] blacks get hurt worse than whites…And subconsciously maybe that is part of it. I’m not saying that. But I’m saying that if it is getting that abstract, and that coded, that we are doing away with the racial problem one way or the other. You follow me — because obviously sitting around saying, ‘We want to cut this,’ is much more abstract than even the busing thing, and a hell of a lot more abstract than ‘Nigger, nigger.’”

One component of the Southern Strategy was the rhetoric of “Law & Order.” By arguing that the civil rights protests reflected a breakdown of law & order and that Martin Luther King Jr.’s strategy of civil disobedience was a leading cause of crime, Republicans could capitalize on the fears of many working class white Americans. “I am greatly concerned that certain racial leaders are … suggesting that citizens need only obey the laws with which they agree,” said Hoover in 1965. “Such an attitude breeds disrespect for the law and even civil disorder and rioting.”

Those in Congress who had vehemently opposed desegregation and the civil rights movement now became the ones who were most vocal on the issue of crime. H.R. Haldeman, Richard Nixon’s Chief of Staff, noted that the President “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.”

Nixon’s successful 1968 presidential campaign, which focused heavily on law & order, validated the idea that this was a winning issue for Republicans. This message formed the foundation for the “War on Drugs” a few years later. “By getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities,” A Nixon advisor said in 2016. “We could arrest their leaders, raid their homes, break up their meetings and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”

In 1982, when President Reagan announced the war on drugs, less than 2% of the public viewed drugs as the most important issue facing the nation at the time. However, by 1986, after a years-long publicity campaign by the White House focusing on crack cocaine in Black communities, TIME Magazine had declared the crack epidemic the issue of the year. Although crack and powder cocaine are pharmacologically the same drug, crack was more prominent in Black communities, while powder cocaine was more widely used in white communities. By 1986, congress had passed severe drug enforcement laws, which included far more severe punishment for the distribution of crack than powder cocaine. Under the Anti-Drug Abuse Act, a person was sentenced to a five-year minimum sentence for possession of five grams of crack cocaine, but it took 500 grams of powder cocaine to trigger the same sentence. In 1990, the KKK, recognizing the racial implications of the War on Drugs, announced that it intended to join the battle against drugs by becoming the eyes and ears of the police. By 1991, a quarter of young Black men were under the control of the criminal justice system.

In the 1990s, the Democrats, under Bill Clinton, attempted to take control of the “tough on crime” message in an effort to win back white swing voters who had begun to favor Republicans in the post-civil rights era. In 1994, a $30 billion crime bill was passed, encouraging even more punitive state laws and harsher practices on the ground. Under Clinton’s tenure, Washington cut funding for public housing by $17 billion and boosted corrections by $19 billion, an increase of 171%.

By 2007, 1 in 31 Americans was under the control of the criminal justice system — that’s more than 7 million people. And although Black and white Americans use and sell drugs at the same rates, 80–90% of those sent to prison on drug charges were Black. In at least 15 states, Black men were admitted to prison on drug charges at a rate between 20 and 57 times greater than that of white men.

Racial disparities in our criminal justice system continue today. According to The Sentencing Project: “African Americans are more likely than white Americans to be arrested; once arrested, they are more likely to be convicted; and once convicted, they are more likely to face stiff sentences. Black men are six times as likely to be incarcerated as white men and Hispanic men are more than twice as likely to be incarcerated as non-Hispanic white men.”

At every level of the criminal justice system, the law is still used in a way that disproportionately harms communities of color. For example, Black people are 3.7 times more likely to be arrested for marijuana possession, even though their rate of drug usage is comparable to that of other races. Police are more likely to stop Black and Hispanic drivers for discretionary reasons. Once pulled over, Black and Hispanic drivers are three times as likely as whites to be searched and Black drivers are twice as likely as whites to be arrested. This is true despite the fact that police officers are statistically less likely to find contraband when searching Black drivers. Black people in America are shot and killed by police at twice the rate of white people; worse yet, in instances where victims pose a minimal-or-less threat to police, Black people are three times as likely to be killed as their white counterparts.

Once arrested, Black and Latino defendants are more likely than whites to be denied bail, to have a higher money bond set, and to be detained because they cannot pay their bond. Pretrial detention increases the odds of conviction, and people who are detained awaiting trial are also more likely to accept less favorable plea deals, to be sentenced to prison, and to receive longer sentences.

Prosecutors are more likely to charge people of color with crimes that carry heavier sentences. For example, federal prosecutors are twice as likely to charge Black defendants with offenses that carry a mandatory minimum sentence, compared to similar white defendants. State prosecutors are twice as likely to charge Black defendants under habitual offender laws, compared to similar white defendants.

Since the early 1970s, nearly 1,700 people have been put on death row; 171 of those individuals (1 in 10) were later found to be innocent and exonerated. Black exonerees from death row were the victims of misconduct by police or prosecutors 87% of the time, compared to 67% of white exonerees.

In 2015, after the fatal shooting of Michael Brown by police, the Department of Justice conducted an investigation into the police department in Ferguson, MO. A summary of the report highlights the following facts: “African Americans made up 67 percent of the population, but between 2012 and 2014, they made up 85 percent of the people pulled over by police. Between 2012 and 2014, black drivers were twice as likely to have their cars searched, but they were 26 percent less likely to have contraband. Between 2010 and August 2014, 88 percent of the documented use of force was against African Americans. Every time a person was bitten by a police dog, the person was black. The FPD brought certain charges almost exclusively against African Americans. For example, in 2013 black residents made up a full 95 percent of manner of walking in roadway charges, and 94 percent of all failure to comply charges. Between 2011 and 2013, African-American drivers got 72 percent of the speeding tickets when radars or laser verification were used, but when tickets were based on officers’ personal observations, they got 80 percent of the tickets.”

The report also found that the police and municipal officials sent racist emails without objection. Many were received by police department supervisors and there was no evidence that anyone was ever disciplined as a result; on the contrary, the emails were often forwarded to others within the department.

Although some of this simply amplifies the everyday racism and racial bias that can be found in every single aspect of our society, there is also something even more striking at play in some situations. Police forces in every region of the country have been shown to have links to white supremacist groups and law enforcement officials have been tied to racist militant activities in more than a dozen states since 2000.

The disparity in imprisonment is further explained by the previously mentioned decades of government housing police that intentionally concentrated Black Americans in urban areas. In 2010, the National Neighborhood Crime Study found that neighborhoods with more concentrated poverty and segregation, regardless of racial make up, have higher levels of crime, especially violent crime. Violent crime rates in predominantly Black and Latino neighborhoods do not differ from those in similarly segregated and disadvantaged white neighborhoods — but thanks to these government housing policies, Black Americans are more likely to live under these circumstances.

Once those convicted of crimes — fairly or not — have served their time, their punishment is far from over. Putting criminal records aside, racial discrimination is quite prevalent in the job market. For example, research shows that when Black job seekers remove hints to their race from their resume while keeping everything else the same, their likelihood of getting called for an interview doubles. White men with criminal records are more likely to get called for interviews than Black men without criminal records. However, having a criminal record further reduces the likelihood of getting a job callback or offer by as much as 50%. In addition to making it difficult or impossible for formerly incarcerated people to find employment, federal and state laws also strip away the social safety net, preventing them from accessing public housing or financial assistance such as food stamps or Temporary Assistance for Needy Families (welfare).

The U.S. is also the only modern democracy that strips voting rights from millions of citizens because of criminal convictions. Across the country, over 6 million Americans are prevented from voting due to felony disenfranchisement policies. One in 13 voting age Black Americans cannot vote — a disenfranchisement rate four times greater than that of other Americans. In some states, more than 1 in 5 Black adults are denied their right to vote.

Decades of discriminatory housing and criminal justice has also taken a toll on the Black family unit. The US Census Bureau reports a gender gap between the number of Black women and men as high as 37% in some urban areas. One and a half million of these missing Black men can be found in our prisons and jails. More Black adults are under correctional control today than were enslaved in 1850 and a Black child born today is less likely to be raised by both parents than a Black child born during slavery was. In fact, a Black child in America today is six times as likely as a white child to have or have had an incarcerated parent. Independent of other social and economic circumstances, having an incarcerated parent makes a child more likely to drop out of school, develop a learning disability, misbehave in school, or suffer from conditions such as depression and anxiety.

While awareness of the inequities in the criminal justice system has grown somewhat in recent years, the racialized rhetoric of “Law & Order” is still alive and well in today’s America. During Donald Trump’s reelection campaign, he and Vice President Pence mentioned “Law & Order” more than 90 times, describing widespread, violent unrest in American cities, calling protestors “thugs,” and promising that “when the looting starts, the shooting starts” (a quote borrowed from a racist 1960s police chief explaining how he cracked down violently on civil rights protestors). Contrary to the image conjured in the Trump campaign’s rhetoric, about 94% of this summer’s racial justice protests were completely peaceful and involved no violence or destructive activity. When there was violence, it was often instigated by outside agitators or by police themselves, who intervened 3 times as often in this summer’s racial justice protests compared to other types of demonstrations, more often using weapons like tear gas, rubber bullets, and pepper spray or beating demonstrators with batons.

In her book The New Jim Crow, Michelle Alexander reflects on the system of mass incarceration and how far we have — or have not — come in our country since the civil rights movement ended Jim Crow: “In the era of colorblindness, it is no longer socially permissible to use race, explicitly, as a justification for discrimination, exclusion, and social contempt. So we don’t. Rather than rely on race, we use our criminal justice system to label people of color ‘criminals’ and then engage in all the practices we supposedly left behind. Today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans. Once you’re labeled a felon, the old forms of discrimination — employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service — are suddenly legal. As a criminal, you have scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it.”

Part 3 | Materials (3 hours)

• Watch: 13TH (here) (100 mins)
• Listen or Read: The New Jim Crow, Chapter 1, Section: “The Birth of Mass Incarceration” (70 mins) (Listen: Ch1, 1:14:00 — end or Read: Pages 40–58)
• Read: The 6 most damning findings from the DOJ’s report on racism in the city of Ferguson (here) (5 mins)

Part 3 | Reflection Questions

• What emotions did you feel when reading these materials? What most stuck out to you and why?
• In a 2013 Gallup survey, when asked whether higher rates of imprisonment in the Black community were due to discrimination or something else, 80% of white Americans said “something else.” What do you think explains the higher rates of imprisonment in the Black community? Did your perspective change as you read these materials? Was there anything surprising to you?
• What is the relationship between the discriminatory housing policy of the 20th century and the disproportionate impact of mass incarceration on the Black community?
• When discussing criminal justice reform, some argue that issues with policing are just “a few bad apples” while others argue that the entire system needs an overhaul, and that we should reduce funding to police and reinvest in things like education, drug treatment, and mental health services. What do you think needs to be done, if anything, to address the inequities in our criminal justice system?
• Author Michelle Alexander says, “The genius of the current caste system, and what most distinguishes it from its predecessors, is that it appears voluntary. People choose to commit crimes and that’s why they are locked up or locked out, we are told…Criminals, it turns out, are the one social group in America we have permission to hate.” Do you agree with Alexander’s assessment? Is discrimination against criminals justified on the basis that they choose to commit crimes?
• In his Letter From Birmingham Jail, Martin Luther King Jr. states “I have almost reached the regrettable conclusion that the Negro’s great stumbling block in his stride toward freedom is not the White Citizen’s Counciler or the Ku Klux Klanner, but the white moderate, who is more devoted to ‘order’ than to justice; who prefers a negative peace which is the absence of tension to a positive peace which is the presence of justice; who constantly says: ‘I agree with you in the goal you seek, but I cannot agree with your methods of direct action.’” Do you agree with his assertion? Does this still ring true today?

This narrative relies heavily on research by Michelle Alexander in her book The New Jim Crow. If you would like to learn more about the drug war and mass incarceration, you can purchase the book here or from one of these Black-owned bookstores.