Alexander 2010

Alexander, Michelle. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: New Press, 2010.

Introduction

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.

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The CIA admitted in 1998 that guerrilla armies it actively supported in Nicaragua were smuggling illegal drugs into the United States—drugs that were making their way onto the streets of inner-city black neigh- borhoods in the form of crack cocaine. The CIA also admitted that, in the midst of the War on Drugs, it blocked law enforcement efforts to investigate illegal drug networks that were helping to fund its covert war in Nicaragua.

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In Germany, 93 people are in prison for every 100,000 adults and children. In the United States, the rate is roughly eight times that, or 750 per 100,000.8 The racial dimension of mass incarceration is its most striking fea- ture. No other country in the world imprisons so many of its racial or ethnic minorities. The United States imprisons a larger percentage of its black population than South Africa did at the height of apartheid…

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These stark racial disparities cannot be explained by rates of drug crime. Studies show that people of all colors use and sell illegal drugs at remarkably similar rates.

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Michael Tonry explains in Thinking About Crime: “Governments decide how much punishment they want, and these decisions are in no simple way related to crime rates.” 14This fact, he points out, can be seen most clearly by putting crime and punishment in com…

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Nevertheless, the United States now boasts an incarceration rate that is six to ten times greater than that of other industrialized nations 16—a development directly traceable to the drug war.

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The stark and sobering reality is that, for reasons largely unrelated to actual crime trends, the American penal system has emerged as a system of social control unparalleled in world history. And while the size of the system alone might suggest that it would touch the lives of most Americans, the primary targets of its control can be defined largely by race. This is an astonishing development, especially given that as recently as the mid-1970s, the most well-respected criminolo- gists were predicting that the prison system would soon fade away.

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The growing consensus among experts was perhaps best reflected by the National Advisory Commission on Criminal Justice Standards and Goals, which issued a recommendation in 1973 that “no new institutions for adults should be built and existing institutions for juveniles should be closed.”1…

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This recommendation was based on their finding that “the prison, the reformatory and the jail have achieved only a shocking record of failure. There is overwhelming evidence that these institutions create crime rather than prevent it.”18

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One in three young African American men will serve time in prison if current trends continue, and in some cities more than half of all young adult black men are currently under correctional control—in prison or jail, on probation or parole. 20Yet mass incarceration tends to be catego- rized as a criminal justice issue as opposed to a racial justice or civil rights issue (or crisis).

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Imagine if civil rights organizations and African American leaders in the 1940s had not placed Jim Crow segregation at the forefront of their racial justice agenda. It would have seemed absurd, given that racial segregation was the primary vehicle of racialized social con- trol in the United States during that period. This book argues that mass incarceration is, metaphorically, the New Jim Crow and that all those who care about social justice should fully commit themselves to dismantling this new racial caste system. Mass incarceration—not attacks on affirmative action or lax civil rights enforcement—is the most damaging manifestation of the backlash against the Civil Rights Movement.

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It may be helpful, in attempting to understand the basic nature of the new caste system, to think of the criminal justice system—the entire collection of institutions and practices that comprise it—not as an independent system but rather as a gateway into a much larger system of racial stigmatization and permanent marginalization. This larger system, referred to here as mass incarceration, is a system that locks people not only behind actual bars in actual prisons, but also behind virtual bars and virtual walls—walls that are invisible to the naked eye but function nearly as effectively as Jim Crow laws once did at locking people of color into a permanent second-class citizen- ship. The term mass incarceration refers not only to the criminal justice system but also to the larger web of laws, rules, policies, and customs that control those labeled criminals both in and out of prison.

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To put the matter starkly: the current system of control permanently locks a huge percentage of the African American community out of the mainstream society and economy. The system operates through our criminal justice institu- tions, but it functions more like a caste system than a system of crime control.

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Equally important to understand is this: Merely reducing sentence length, by itself, does not disturb the basic architecture of the New Jim Crow.

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Likewise, the notion that the New Jim Crow can ever be dis- mantled through traditional litigation and policy-reform strategies that are wholly disconnected from a major social movement seems fundamentally misguided.

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What this book is intended to do—the only thing it is intended to do—is to stimulate a much-needed conversation about the role of the criminal justice system in creating and perpetuating racial hierarchy in the United States.

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1

The most ardent proponents of racial hierarchy have consistently suc- ceeded in implementing new racial caste systems by triggering a col- lapse of resistance across the political spectrum. This feat has been achieved largely by appealing to the racism and vulnerability of lower- class whites, a group of people who are understandably eager to ensure that they never find themselves trapped at the bottom of the American hierarchy.

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…took an additional precautionary step, a step that would later come to be known as a “racial bribe.” Deliber- ately and strategically, the planter class extended special privileges to poor whites in an effort to drive a wedge between them and black slaves.

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Although the convict laws enacted during this period are rarely seen as part of the black codes, that is a mistake.

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In a landmark decision by the Virginia Supreme Court, Ruffin v. Commonwealth, issued at the height of South- ern Redemption, the court put to rest any notion that convicts were legally distinguishable from slaves:

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For a time, during his service in the penitentiary, he is in a state of penal servitude to the State. He has, as a con- sequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being a slave of the State. He is civiliter mortus; and his estate, if he has any, is administered like that of a dead man.19

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Segregation laws were proposed as part of a deliberate effort to drive a wedge between poor whites and African Americans. These dis- criminatory barriers were designed to encourage lower-class whites to retain a sense of superiority over blacks, making it far less likely that they would sustain interracial political alliances aimed at toppling the white elite. The laws were, in effect, another racial bribe.

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History seemed to repeat itself. Just as the white elite had success- fully 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, lending sanction to a racial ostra- cism that extended to schools, churches, housing, jobs, restrooms, hotels, restaurants, hospitals, orphanages, prisons, funeral homes, morgues, and cemeteries.

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The rhetoric of “law and order” was first mobilized in the late 1950s as Southern governors and law enforcement officials attempted to gener- ate and mobilize white opposition to the Civil Rights Movement.

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For more than a decade—from the mid-1950s until the late 1960s— conservatives systematically and strategically linked opposi- tion to civil rights legislation to calls for law and order, arguing that Martin Luther King Jr.’s philosophy of civil disobedience was a leading cause of crime.

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Early on, little effort was made to disguise the racial motivations behind the law and order rhetoric and the harsh criminal justice legis- lation proposed in Congress. The most ardent opponents of civil rights legislation and desegregation were the most active on the emerging crime issue.

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Thus in the late 1960s and early 1970s, two schools of thought were offered to the general public regarding race, poverty, and the social order. Conservatives argued that poverty was caused not by structural factors related to race and class but rather by culture—particularly black culture. This view received support from Daniel Patrick Moyni- han’s now infamous report on the black family, which attributed black poverty to a black “subculture” and the “tangle of pathology” that characterized it.

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The “social pathologies” of the poor, particularly street crime, illegal drug use, and delinquency, were redefined by conservatives as having their cause in overly generous relief arrangements. Black “welfare cheats” and their dangerous offspring emerged, for the first time, in the politi- cal discourse and media imagery.

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Liberals, by contrast, insisted that social reforms such as the War on Poverty and civil rights legislation would get at the “root causes” of criminal behavior and stressed the social conditions that predictably generate crime.

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Competing images of the poor as “deserving” and “undeserving” became central components of the debate. Ultimately, the racialized nature of this imagery became a crucial resource for conservatives, who succeeded in using law and order rhetoric in their effort to mobi- lize the resentment of white working-class voters, many of whom felt threatened by the sudden progress of African Americans.

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Just as race had been used at the turn of the century by Southern elites to rupture class solidarity at the bottom of the income ladder, race as a national issue had broken up the Democratic New Deal “bottom-up” coalition—a coalition dependent on substantial sup- port from all voters, white and black, at or below the median income.

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To great effect, Reagan echoed white frustration in race-neutral terms through implicit racial appeals. His “colorblind” rhetoric on crime, welfare, taxes, and states’ rights was clearly understood by white (and black) voters as having a racial dimension, though claims to that effect were impossible to prove. The absence of explicitly racist rhetoric afforded the racial nature of his coded appeals a certain plausible deniability.

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In so doing, Clinton—more than any other president—created the current racial undercaste.

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Despite claims that these radical policy changes were driven by fis- cal conservatism—i.e., the desire to end big government and slash budget deficits—the reality is that government was not reducing the amount of money devoted to the management of the urban poor. It was radically altering what the funds would be used for. The dramatic shift toward punitiveness resulted in a massive reallocation of public resources. By 1996, the penal budget doubled the amount that had been allocated to AFDC or food stamps. 101Similarly, funding that had once been used for public housing was being redirected to prison con- struction.

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2

Drug offenses alone account for two-thirds of the rise in the federal prison population and more than half the rise in the state prison population between 1985 and 2000. 1Approximately 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.

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3To put the mat- ter in perspective, consider this: there are more people in prisons and jails today just for drug offenses than were incarcerated for all reasons in 1980.

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With only a few exceptions, the Supreme Court has seized every opportunity to facilitate the drug war, primarily by eviscerating Fourth Amendment protections against unreasonable searches and seizures by the police. The rollback has been so pronounced that some commentators charge that a virtual “drug exception” now exists to the Bill of Rights.

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The new system of control is traceable, to a significant degree, to a massive bribe offered to state and local law enforcement by the federal government.

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The rate of increase in the use of SWAT teams has been astonishing. In 1972, there were just a few hundred paramilitary drug raids per

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year in the United States. By the early 1980s, there were three thou- sand annual SWAT deployments, by 1996 there were thirty thousand, and by 2001 there were forty thousand. 41The escalation of military force was quite dramatic in cities throughout the United States.

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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.

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Generally, the financial incentives offered to local law enforcement to pump up their drug arrests have not been well publicized, leading the average person to conclude reasonably (but mistakenly) that when their local police departments report that drug arrests have doubled or tripled in a short period of time, the arrests reflect a surge in illegal drug

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activity, rather than an infusion of money and an intensified enforce- ment effort.

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Each arrest, in theory, would net a given city or county about $153 in state and federal fund- ing. Non-drug-related policing brought no federal dollars, even for vio- lent crime.

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3

As a result of the Armstrong decision, defendants who suspect racial bias on the part of prosecutors are trapped in a classic catch-22. In order to state a claim of selective prosecution, they are required to offer in advance the very evidence that generally can be obtained only through discovery of the prosecutor’s files. The Court justified this insurmount- able hurdle on the grounds that considerable deference is owed the exercise of prosecutorial discretion.

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It is difficult to imagine a system better designed to ensure that racial biases and stereotypes are given free rein—while at the same time appearing on the surface to be colorblind—than the one devised by the U.S. Supreme Court.

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And unbeknownst to the general public, the Supreme Court has actually authorized race discrimination in policing, rather than adopting legal rules banning it.

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The dirty little secret of policing is that the Supreme Court has actu- ally granted the police license to discriminate.

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Because the Supreme Court has authorized the police to use race as a factor when making decisions regarding whom to stop and search, police depart- ments believe that racial profiling exists only when race is the sole factor. Thus, if race is one factor but not the only factor, then it doesn’t really count as a factor at all.

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4

Today a criminal freed from prison has scarcely more rights, and arguably less respect, than a freed slave or a black person liv- ing “free” in Mississippi at the height of Jim Crow.

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In “colorblind” America, criminals are the new whipping boys. They are entitled to no respect and little mor- al concern.

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No other country in the world disenfranchises people who are released from prison in a manner even remotely resembling the Unit- ed States.

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Throughout much of the Unit- ed States, people convicted of felonies are expected to pay fines and court costs, and submit paperwork to multiple agencies in an effort to win back a right that should never have been taken away in a democ- racy. These bureaucratic minefields are the modern-day equivalent of poll taxes and literacy tests—“colorblind” rules designed to make vot- ing a practical impossibility for a group defined largely by race.

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Research indicates that a large number of close elections would have come out differently if people with felony records had been allowed to vote, including at least seven senatorial races between 1980 and 2000.

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”6 When someone is convicted of a crime today, their “debt to soci- ety” is never paid. The “cruel hand” that Frederick Douglass spoke of more than 150 years ago has appeared once again.

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David Braman’s ethnographic research shows that mass incarceration, far from reducing the stigma associated with criminality, actually creates a deep silence in communities of color, one rooted in shame.

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The historical anthropologist Gerald Sider once wrote, “We can have no significant understanding of any culture unless we also know the silences that were institutionally created and guaranteed along with it.” 84Nowhere is that observation more relevant in American society today than in an analysis of the culture of mass incarceration.

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The notion that families struggling in ghettoized neighborhoods do not, in fact, want those things, and instead are per- fectly content to live in crime-ridden communities, feeling no shame or regret about the fate of their young men is, quite simply, racist. It is impossible to imagine that we would believe such a thing about whites.

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…on can be posed with respect to shaming those trapped in ghettos: are we willing to demonize a population, declare a war against them, and then stand back and heap shame and contempt upon them for fail- ing to behave like model citizens while under attack?

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5

The widespread and mistaken belief that racial animus is necessary for the creation and maintenance of racialized systems of social con- trol is the most important reason that we, as a nation, have remained in deep denial.

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…a prima- ry function of any racial caste system is to define the meaning of race in its time. Slavery defined what it meant to be black (a slave), and Jim Crow defined what it meant to be black (a second-class citizen). Today mass incarceration defines the meaning of blackness in America: black people, especially black men, are criminals. That is what it means to be black.

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The prevalence of illegal drug activity among all racial and ethnic groups creates a situation in which, due to limited law enforcement resources and political constraints, some people are made criminals while others are not. Black people have been made criminals by the War on Drugs to a degree that dwarfs its effect on other racial and ethnic groups, especially whites. And the process of making them criminals has produced racial stigma.

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Mass incarceration, like Jim Crow, was born of racial opportunism—an effort by white elites to exploit the racial hostilities, resentments, and insecurities of poor and working-class whites.

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…one thing that makes the current penal apparatus strikingly different from previous racial caste systems is that “it does not carry out the positive economic mission of recruitment and disciplining of the workforce.” 86Instead it serves only to warehouse poor black and brown people for increasingly lengthy periods of time, often until old age. The new system does not seek primarily to benefit unfairly from black labor, as earlier caste systems have, but instead views African Americans as largely irrelevant and unnecessary to the newly structured economy—an economy that is no longer driven by unskilled labor.

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6

Imprisonment, they say, now creates far more crime than it prevents, by ripping apart fragile social net- works, destroying families, and creating a permanent class of unem- ployables.

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Saying mass incarceration is an abysmal failure makes sense, though, only if one assumes that the criminal justice system is designed to pre- vent and control crime. But if mass incarceration is understood as a system of social control—specifically, racial control—then the system is a fantastic success.

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Saying that one does not care about race is offered as an excul- patory virtue, 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.

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Racial justice advocates should consider, with a degree of candor that has not yet been evident, wheth- er affirmative action—as it has been framed and defended during the past thirty years—has functioned more like a racial bribe than a tool of racial justice.

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The claim is that racial justice advocates should reconsider the traditional approach to affirmative action because (a) it has helped to render a new caste system largely invisible; (b) it has helped to per- petuate the myth that anyone can make it if they try; (c) it has encour- aged the embrace of a “trickle-down theory of racial justice”; (d) it has greatly facilitated the divide-and-conquer tactics that gave rise to mass incarceration; and (e) it has inspired such polarization and media attention that the general public now (wrongly) assumes that affirma- tive action is the main battlefront in U.S. race relations.

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Mass incarceration depends for its legitimacy on the widespread belief that all those who appear trapped at the bot- tom actually chose their fate.

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But if the movement that emerges to end mass incarceration does not mean- ingfully address the racial divisions and resentments that gave rise to mass incarceration, 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.

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