Michelle Alexander’s book, The New Jim Crow, is a must-read for anyone trying to come to grips with the explosive growth of America’s prison population in the past three decades—and how this growth relates to the racial disparity in imprisonment. There are now 2.3 million people behind bars, including one in nine young African American men. Although most drug users are white, three-quarters of those imprisoned on drug charges are Black or Latino. Rather than unintentional side effects, Alexander convincingly argues that these racial disparities provide the key to understanding the prison boom.
As a civil rights lawyer, Alexander admits that it took her a long time to accept this idea.
When I began my work at the ACLU, I assumed that the criminal justice system had problems of racial bias, much in the same way that all major institutions in our society are plagued with problems associated with conscious and unconscious bias.… Quite belatedly, I came to see that mass incarceration in the United States had, in fact emerged as a stunningly comprehensive and well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow.
Alexander describes how the two prior systems of racial control, slavery and Jim Crow, functioned to create a racial underclass. Both systems, she argues, have their roots in a society that championed freedom and equality while denying both to Blacks. Moreover, racism proved a potent wedge for white elites to drive between poor whites and Blacks. Describing the rise of Jim Crow in the wake of a growing Populist movement, Alexander notes,
History seemed to repeat itself. Just as the white elite had successfully driven a wedge between poor whites and blacks following Bacon’s Rebellion by creating the institution of black slavery, another racial caste system was emerging nearly two centuries later, in part due to efforts by white elites to decimate a multiracial alliance of poor people. By the turn of the twentieth century, every state in the South had laws on the books that disenfranchised blacks and discriminated against them in virtually every sphere of life.
Following the dismantling of Jim Crow in the wake of the civil rights movement, Alexander argues there was another window open for uniting poor whites and Blacks—perhaps best represented by Martin Luther King Jr.’s vision of a poor people’s campaign. At this moment, the criminal justice system came to be seen by elites as a crucial tool in forestalling this development.
The rhetoric of “law and order,” first used by Southern segregationists, became more attractive as Americans increasingly came to reject outright racial discrimination. Coded racial messages became the staple of the Republican strategy in the coming decades. As Nixon advisor H. R. Haldeman described, “He [President 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.”
The consolidation of the criminal justice system as a new vehicle for racial control came under Ronald Reagan, who declared the “war on drugs” at a time when drug use was actually on the decline. Federal budgets for drug enforcement began their steep, continuous ascent. The racial imagery used by politicians and the media at the time left no doubt as to who the intended targets of this war would be. Successive presidencies of both Republicans and Democrats continued to capitalize on this coded racism—from George Bush Sr.’s Willie Horton ad to Bill Clinton’s personally overseeing the execution of a brain-damaged Black man just weeks before the 1992 election.
The bulk of The New Jim Crow is an account of how this new system of racial control has been constructed. In the first instance, a focus on drug use provides the perfect pretext for increasing arrests even when violent crime rates are declining, since drug use is ubiquitous in American society. The federal government gave state and local police departments tremendous monetary incentives to maximize the number of drug arrests. At the same time, the courts provided increased leeway for police to conduct searches and seizures on the flimsiest of pretexts—or none at all.
Meanwhile, tougher sentencing laws have dramatically increased the amount of time served for drug offenses. Prosecutorial discretion, combined with an inadequate system of public defense, exacerbates this trend. As a result, “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.”
Alexander then tackles the controversial question of how a formally race-neutral system targets people of color so systematically. She argues that this cannot be explained simply by higher poverty and crime rates in these communities, noting that “the very same year Human Rights Watch was reporting that African Americans were being arrested and imprisoned at unprecedented rates, government data revealed that white youth were actually the most likely of any racial or ethnic group to be guilty of illegal drug possession and sales.”
The explanation for racial disparities can be summed up in a word: discretion. At every step along the path, from an initial traffic stop and arrest to conviction and sentencing, police and prosecutors are given a tremendous amount of discretion. Why might police be more likely to target people of color? The reasons are partly diplomatic. Given the ubiquity of drug crime, police departments make choices about where to focus their efforts. Conducting large numbers of stop-and-frisk and SWAT house raids in poor communities of color provokes considerably less political backlash than doing the same in an affluent white suburb.
Often the racial biases in these decisions are less the work of outright bigotry than unconscious racial stereotypes, which, as noted, have been widely promoted by politicians and the media. Alexander notes a 1995 study that asked participants to close their eyes and picture a drug user. Ninety-five percent pictured a Black person, although Blacks in reality make up only 15 percent of drug users. “Viewed as a whole, the relevant research by cognitive and social psychologists to date suggests that racial bias in the drug war was inevitable, once a public consensus was constructed by political and media elites that drug crime is black and brown.”
Even in cases where racial bias is conscious, proving it can be difficult if not impossible. As Alexander documents, a series of Supreme Court rulings have effectively shut the courthouse doors to claims of racial bias in the criminal justice system. Short of documented evidence of a police officer or prosecutor openly admitting that they targeted an individual solely because of their race, no legal challenge is deemed inadmissible. Thus, a police officer accused of profiling a Black youth because of his race can easily claim that he was stopped due to his “baggy pants” or any other formally nonracial characteristic.
Considering a series of Supreme Court decisions as a whole, Alexander concludes:
The Supreme Court has now closed the courthouse doors to claims of racial bias at every stage of the criminal justice process, from stops and searches to plea bargaining and sentencing. The system of mass incarceration is now, for all practical purposes, thoroughly immunized from claims of racial bias.
Alexander goes on to show how this system of racial control operates beyond the prison cell as the criminal label follows millions of people of color for the rest of their lives. Convicted felons are denied access to housing, food stamps, and other public benefits. Nearly every job application requires one to “check the box” if he or she has been convicted, and in some cases merely arrested, for a crime. In many states, felons are barred from voting for life, and many who are eligible to have their voting rights reinstated are effectively barred from doing so by prohibitive fees and bureaucracy.
Accompanying this legal exile from mainstream society is a profound sense of shame and isolation.
Criminals, it turns out, are the one social group in America we have permission to hate. In “colorblind” America, criminals are the new whipping boys. They are entitled to no respect and little moral concern. Like the “colored” in the years following emancipation, criminals today are deemed a characterless and purposeless people, deserving of our collective scorn and contempt.… Hundreds of years ago, our nation put those considered less than human in shackles; less than one hundred years ago, we relegated them to the other side of town; today we put them in cages.
This officially colorblind system goes a long way in explaining how we have come to this moment in which a Black president can oversee a system that locks up millions of Black men. Alexander argues that Black exceptionalism in the form of Barack Obama or the Black police officer now forms a key component of the new system of racial control:
These stories “prove” that race is no longer relevant. Whereas Black success stories undermined the logic of Jim Crow, they actually reinforce the system of mass incarceration. Mass incarceration depends for its legitimacy on the widespread belief that all those who appear trapped at the bottom actually chose their fate.
For these reasons, Alexander is wary of those who think Obama will usher in a new era in criminal justice. A recent article in the Nation by Sasha Abramsky strikes this tone, pointing to renewed efforts at state and federal levels to rescind some of the worst aspects of racism in the criminal justice system, such as sentencing disparities between crack and cocaine. The article quotes Obama-appointed attorney general Eric Holder declaring, “It is not justice to continue our adherence to a sentencing scheme that disproportionately affects some Americans, and some communities, more severely than others.”
Rhetoric aside, as Alexander points out, Holder
sought to ratchet up the drug war as U.S. attorney for the District of Columbia and fought the majority Black D.C. City Council in an effort to impose harsh mandatory minimums for marijuana possession.… And while Obama’s drug czar, former Seattle Police Chief Gil Kerlikowske, has said the War on Drugs should no longer be called a war, Obama’s budget for law enforcement is actually worse than the Bush administration’s in terms of the ratio of dollars devoted to prevention and drug treatment as opposed to law enforcement.
Alexander notes that the presence of a Black man in the White House may, in fact, make African Americans more hesitant to challenge racist policies overseen by him.
Alexander also cautions against the idea that the budget crisis alone can lead to the full-scale dismantling of the system of mass incarceration, given its sheer scale and the considerable economic interests invested in its continued expansion. Substantial changes will be met with considerable resistance. Minor reforms will only make a small dent, while leaving the overall structure intact. For instance, shorter sentencing does nothing to address the prison label that follows people upon release.
Furthermore, this approach suggests that a racist system can somehow be dismantled without mentioning race. Times of economic crisis produce not only budgetary concerns, but also rising crime rates and racist scapegoating by politicians, which could easily lead to a reversal in this trend.
Slavery and Jim Crow were not eliminated through piecemeal reforms and court decisions, nor for that matter, through intractable economic contradictions. It took, in the first case, nothing short of a civil war, and in the second, a mass civil rights movement, which changed not only the system of racial control, but the public consensus on race in America.
Alexander argues that a new civil rights movement is urgently needed today. She ends with a vision that “the fire this time” should learn from and aim to move beyond the limits of past struggles:
If the movement that emerges to challenge mass incarceration fails to confront squarely the critical role of race in the basic structure of society, and if it fails to cultivate an ethic of genuine care, compassion, and concern for every human being—of every class, race, and nationality—within our nation’s borders (including poor whites, who are often pitted against poor people of color), the collapse of mass incarceration will not mean the death of racial caste in America. Inevitably a new system of racialized social control will emerge—one that we cannot foresee just as the current system of mass incarceration was not predicted by anyone thirty years ago. No task is more urgent for racial justice advocates today than ensuring that America’s current racial caste system is its last.