Criminal Justice & The New Jim Crow

The War on Drugs as a Means of Racial Control

by Cheryl Greenberg

Imagine that police routinely set up road blocks and conduct blood-alcohol level tests on nearly every driver. They raid bars to find underage drinkers with fake IDs, then move to the parking lot to test drivers getting into their cars. They interrupt college parties to arrest those under 21 holding a drink in their hands, and scour dormitories for those drinking in their rooms. Every underage drinker, every driver with a DUI, is tried and imprisoned with a mandatory minimum sentence, and their cars are impounded. Each bartender and owner is arrested and sentenced as well, and their places of business are seized by the police and sold to benefit their departments.

Imagine hundreds of thousands of non-violent people, many of them young and with no prior records, finding themselves behind bars for years on end, disenfranchised for life, excluded from many jobs and universities, barred from receiving public aid or housing, and permanently stigmatized. Their families would be destroyed, their futures poisoned. Many would end up on Skid Row.

We would all be up in arms.

This is the reality, every day, for young black and brown people in America, thanks to the forty-year-old War on Drugs. Michelle Alexander, formerly the director of the ACLU’s Racial Justice Project in Northern California and now an associate professor of law, has written a powerful, moving book about the mass incarceration engendered by that war, and the many political pressures and economic and social realities behind it. Her basic argument is that an interlocking complex of law enforcement discretion, conscious and unconscious racial bias, mandatory sentencing policies, inadequacies of the legal system for indigent defendants, Supreme Court decisions limiting appeals, and the economic importance of the prison and parole apparatuses, combine to create and maintain a system of racial control — a system that has replaced Jim Crow in our now supposedly colorblind society. While not every aspect of the current system is rooted in, or relies on, racism, its genesis and many of the reasons for its expansion have been explicitly racist, Alexander suggests. “The nature of the criminal justice system has changed,” she writes. “It is no longer concerned primarily with the prevention and punishment of crime, but rather with the management and control of the dispossessed.”

Here’s a brief sense of the scope of the problem: Despite the fact that violent crime has dropped dramatically over the past two generations, the U.S. now imprisons a larger proportion of its population than any other nation in the world. In 2011 there were approximately 2.3 million Americans in prison and more than 7.3 million under some form of correctional control. Of these, a scandalously high proportion are African-American or Latino: The number of black men in prison in 2000 was twenty-six times higher than in 1983, and twenty-two times higher for Latinos. For white men, by contrast, the number imprisoned in 2000 was eight times the total of 1983. Put it in terms of population today, one in every hundred white men, one in every thirty-six Latino men, and one in every fifteen black men in America are behind bars.

Much of this increase is thanks to the War on Drugs — yet all studies report either an equal level of drug use among the races, or a higher use among whites. Drug arrests and convictions among blacks, however, overwhelmingly outnumber those among whites. In at least fifteen states, Alexander notes, the number of African-American men going to prison on drug charges are twenty to fifty-seven times higher than the number of white men.

Michelle Alexander’s term, “mass incarceration,” refers to the entire criminal justice system, from prison to parole, and the ongoing consequences of being marked a felon. These consequences include a lifetime bar from public aid and public housing, an extended period (sometimes a lifetime) of being barred from voting and jury duty in many states, exclusion from the military and from a number of jobs and licenses, legal employment discrimination, and enduring shame. The economic and emotional toll on the felon’s family is devastating — and worse if the family’s property has been seized because the felony occurred there. This is a system perfectly suited for recidivism, not crime prevention.

Mass incarceration has become the “primary mechanism for racial oppression and the denial of equal opportunity,” Alexander writes, and there is every indication that this was, indeed, the intent. “Law and order” became the 1960s conservative buzzword, she observes, for opposing the civil rights struggle and for the implicit racism of Nixon’s electoral “Southern strategy.” Virtually every Republican since then has employed a covert racial appeal to working-class whites, perhaps none more effectively than Ronald Reagan, who expanded Nixon’s War on Drugs in order to legitimize anti-black feeling and translate it to Republican political support. Based on no evidence of any escalation of narcotics use or danger, this well-funded war diverted money away from treatment programs and into policing. Law enforcement was incentivized by federal dollars to focus on drug arrests, and further incentivized by drug forfeiture laws. Media-stoked images of black criminals, gangs and welfare cheats fed white perceptions of drug-related crime as a racial issue.

Legislatures and courts also supported the War on Drugs in many ways, according to The New Jim Crow. Federal sentencing guidelines established harsh minimum sentences for drug-related crimes (Alexander quotes more than one judge, including conservatives, who bemoan the heavy sentences that they are required to hand down for minor drug offenses). Courts systematically shielded law enforcement from claims that false stops or stop-and-frisk policies were racially discriminatory. Encouraged this way, police departments pursued mass, even warrantless sweeps. Limited budgets for legal aid, and the unwillingness of the courts to protect against incompetent counsel, meant that even innocent defendants have copped a plea to avoid draconian sentences. Meanwhile, the allocation of federal money revealed that government cared less about helping drug users than sustaining a growing population of felons.

Democrats as well as Republicans have colluded in the escalation of mass incarceration. Bill Clinton’s ending of welfare, rather than lowering government spending for the needy, reallocated monies to punitive programs like prison. Subjected to long-term restrictions on their citizenship and opportunity, felons have been trapped forever in what Loic Wacquant, a sociologist quoted by Alexander, terms a “closed circuit of perpetual marginality.” Recidivism in such circumstances is so likely as to suggest that policymakers see the prison-industrial complex as an effective and profitable way to keep the most vulnerable members of society out of the way.

Alexander’s book provides a tour of each corner of the criminal justice system, and shows how their interlocked functioning makes it difficult to dismantle the system’s injustice. With the police given wide discretion in drug law enforcement, and prosecutors given unfettered discretion in laying charges, both conscious and unconscious racism are free to operate. That racial bias would be present is hardly surprising: Alexander reports on psychological studies that reveal that all Americans, black and white, share unconscious biases regarding black people and crime, thanks in part to

fictional police dramas, music videos, gangsta rap, and ‘true’ accounts of ghetto experience on the evening news. These racialized narratives tend to confirm and reinforce the prevailing public consensus that we need not care about ‘those people’; they deserve what they get.

Yet the courts, including the Supreme Court, have barred race-based challenges to arrest or round-up patterns without specific, explicit evidence of racism. The wide discretion given to the police and prosecutors is therefore rarely challenged or even scrutinized.

Finally, the ongoing restrictions on felons have clear and dramatic impact not only on their own opportunities but on their families and communities, who are equally trapped in poverty, desperation and violence.

With mass incarceration affecting so many African Americans, Alexander argues that it has replaced earlier forms of racial control, such as slavery and Jim Crow, as “new tactics for achieving the same goals.” While the prison system sweeps up many whites as well, it is calibrated to remove men of color, those most feared and most economically marginalized. She argues that mass incarceration has become the biggest civil rights issue for our time.

How is this new system similar to Jim Crow segregation? Both legitimize the disenfranchisement of many African Americans and their exclusion from economic and educational opportunities. Felons are largely segregated in poor black communities, reproducing older patterns of residential segregation. Finally, Jim Crow and mass incarceration have both defined the experience of race in the United States. During the Jim Crow era, being black meant having second-class citizenship. Today, it means being made into a criminal. The stigma that black felons suffer is shared by other black people. The mass incarceration system goes beyond the individual to determine the destiny of an entire community. It has become, Alexander writes, a “race-making institution.”

Why don’t most Americans see this? She suggests that we are accustomed to seeing racism as something overt and violent, while the “new Jim Crow” is couched in color-blind terms. Particularly because Reagan and his ilk have taught us that black people are, in fact, fundamentally criminal, nothing seems particularly wrong with their disproportionate incarceration. “Denial,” writes Alexander, “is facilitated by persistent racial segregation in housing and schools, by political demagoguery, by racialized media imagery, and by the ease of changing one’s perception . . . simply by changing television channels . . .”

There is little reason to doubt the prevailing “common sense” that black and brown men have been locked up en masse merely in response to crime rates when one’s sources of information are mainstream media outlets. . . . Those confined to prisons are out of sight and out of mind; once released, they are typically confined in ghettos.

While Jim Crow depended primarily on racial antipathy, the New Jim Crow depends on racial indifference. Mass incarceration is another brick in the wall of structural racism, of institutions that operate in racialized ways invisible to most people because they are explained using non-racial language. Whether or not the system is racist in intent, it continues to serve the purpose of maintaining black oppression.

Yes, there is criminality, Alexander says, and dangerous criminals must be kept off the streets. The fact is, however, that non-whites are being disproportionately arrested and heavily punished for committing minor, non-violent infractions of which many whites are also guilty. The issue, then, is not crime and punishment, but mass incarceration, intended for the purpose of warehousing those who have no place in the new economy, who lack skills or education and have been displaced by our outsourcing of unskilled work.

Others have argued that the need for unskilled labor is actually driving the prison-industrial complex, which profits mightily from inmate labor as well as from tax dollars. No one, however, is challenging the point that hundreds of thousands of jobs, in both the public and private sectors, are bound up with the system of mass incarceration: from those who build and administer the prisons, to those who work for the growing sector of private corporations that run prisons, to those who supervise parole services, to bail bondsmen, to manufacturers of prison garb and police supplies.

These broad, vested interests, and the interlocking nature of the complex criminal justice system, make it very difficult to dismantle the injustice that Alexander’s book exposes. Changing minimum sentencing requirements, for example, does not change the arbitrariness of law enforcement; altering “stop-and-frisk” policing does not lessen prosecutorial power; restoring discretionary sentencing to judges does not improve defense services for indigent defendants; etc. The entire edifice must be challenged as a whole. Alexander is discouragingly persuasive, however, about why traditional approaches of protest and litigation won’t work. Not only is piecemeal reform inadequate, she insists (and we may soon see if she is correct here, now that the disparity in sentencing for crack and powder cocaine has been somewhat reduced, and stop-and-frisk laws are being been challenged on civil rights grounds), but there is no Rosa Parks to represent the movement. Parks, Alexander notes, was chosen precisely because she had no criminal background or “stains” on her record. What felon can present such an image for the new civil rights struggle? And will middle-class people, black or white, be willing to work actively on behalf of people they do not respect and may even fear?

One key, The New Jim Crow argues, is to end the fallacious rhetoric of race blindness. We need not only to recognize but to appreciate racial difference, and develop a politics of mutual respect and unity.

Alexander’s sense of the intractability of the problem is frustrating. Yet prison overcrowding in a time of budget-cutting is one vulnerability that could be exploited by opponents of the New Jim Crow, and the obvious failure of the interminable War on Drugs, and the growing sentiment in favor of decriminalizing marijuana, are also encouraging. If litigation will not work, what approaches might? Are there combinations of approaches that might be tried? Activists around the country are exploring the question, inspired by Michelle Alexander’s research and passion.