The New Jim Crow: Mass Incarceration in the Age of Colorblindness

by Michelle Alexander

The impact of the drug war has been astounding. In less than thirty years, the U.S penal population exploded from around 300,000 to more than 2 million, with drug convictions accounting for the majority of the increase.

Nevertheless, the United States now boasts an incarceration rate that is six to ten times greater than that of other industrialized nations

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.

eliminating “savages” is less of a moral problem than eliminating human beings, and therefore American Indians came to be understood as a lesser race—uncivilized savages—thus providing a justification for the extermination of the native peoples.

“Racial division was a consequence, not a precondition of slavery, but once it was instituted it became detached from its initial function and acquired a social potency all its own.”

“If [blacks] conduct themselves in an orderly way, they will not have to worry about police brutality,” argued West Virginia senator Robert Byrd.

The affluent white liberals who were pressing the legal claims of blacks and other minorities “were often sheltered, in their private lives, and largely immune to the costs of implementing minority claims.”58 This reality made it possible for conservatives to characterize the “liberal Democratic establishment” as being out of touch with ordinary working people—thus resolving one of the central problems facing conservatives: how to persuade poor and working-class voters to join in alliance with corporate interests and the conservative elite.

Practically overnight the budgets of federal law enforcement agencies soared. Between 1980 and 1984, FBI antidrug funding increased from $8 million to $95 million.73 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.74 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.

word, just weeks before the critical New Hampshire primary, Clinton chose to fly home to Arkansas to oversee the execution of 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.

TANF imposed a five-year lifetime limit on welfare assistance, as well as a permanent, lifetime ban on eligibility for welfare and food stamps for anyone convicted of a felony drug offense—including simple possession of marijuana.

Despite claims that these radical policy changes were driven by fiscal 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.

Thus, for countless poor people, particularly racial minorities targeted by the drug war, public housing was no longer available, leaving many of them homeless—locked out not only of mainstream society, but their own homes.

Bostick’s search and seizure reflected what had become an increasingly common tactic in the War on Drugs: suspicionless police sweeps of buses in interstate or intrastate travel.

sounds like the ICE raids of buses.

So long as orders are phrased as a question, compliance is interpreted as consent. “May I speak to you?” thunders an officer. “Will you put your arms up and stand against the wall for a search?”

According to the Cato Institute, in 1997 alone, the Pentagon handed over more than 1.2 million pieces of military equipment to local police departments.

1981, when President Reagan persuaded Congress to pass the Military Cooperation with Law Enforcement Act, which encouraged the military to give local, state, and federal police access to military bases, intelligence, research, weaponry, and other equipment for drug interdiction.

Each arrest, in theory, would net a given city or county about $153 in state and federal funding. Non-drug-related policing brought no federal dollars, even for violent crime. As a result, when Jackson County, Wisconsin, quadrupled its drug arrests between 1999 and 2000, the county’s federal subsidy quadrupled too.46

The U.S. Sentencing Commission itself has noted that “the value of a mandatory minimum sentence lies not in its imposition, but in its value as a bargaining chip to be given away in return for the resource-saving plea from the defendant to a more leniently sanctioned charge.”

This system depends on the prison label, not prison time.

As noted earlier, of the nearly 7.3 million people currently under correctional control, only 1.6 million are in prison.

One study, for example, involved a video game that placed photographs of white and black individuals holding either a gun or other object (such as a wallet, soda can, or cell phone) into various photographic backgrounds. Participants were told to decide as quickly as possible whether to shoot the target. Consistent with earlier studies, participants were more likely to mistake a black target as armed when he was not, and mistake a white target as unarmed, when in fact he was armed.44 This pattern of discrimination reflected automatic, unconscious thought processes, not careful deliberations.

In the study described above, for example, black participants showed an amount of “shooter bias” similar to that shown by whites.

According to the Court, whether or not police discriminate on the basis of race when making traffic stops is irrelevant to a consideration of whether their conduct is “reasonable” under the Fourth Amendment.

[I]f we accepted McCleskey’s claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty.”

The court remanded the case back to the district court for resentencing. Clary—now married and a father—was ordered back to prison to complete his ten-year term.

To date, not a single successful challenge has ever been made to racial bias in sentencing under McCleskey v. Kemp anywhere in the United States.

a review of juvenile sentencing reports found that prosecutors routinely described black and white offenders differently.68 Blacks committed crimes because of internal personality flaws such as disrespect. Whites did so because of external conditions such as family conflict.

The purpose of our Constitution—especially the Fourteenth Amendment’s equal-protection guarantee—is to protect minority rights even when, or especially when, they are unpopular.

The Court’s ruling in Lyons makes it extremely difficult to challenge systemic race discrimination in law enforcement and obtain meaningful policy reform.

Only the federal government can sue to enforce Title VI’s antidiscrimination provisions—something it has neither the inclination nor the capacity to do in most racial profiling cases due to its limited resources and institutional reluctance to antagonize local law enforcement.

Criminals, it turns out, are the one social group in America we have permission to hate.

But for countless poor people—particularly racial minorities who disproportionately rely on public assistance—that possibility looms large. As a result, many families are reluctant to allow their relatives—particularly those who are recently released from prison—to stay with them, even temporarily.

Although “debtor’s prison” is illegal in all states, many states use the threat of probation or parole revocation as a debt-collection tool.

Welfare reform legislation signed by President Bill Clinton in 1996 ended individual entitlements to welfare and provided states with block grants. The Temporary Assistance for Needy Family Program (TANF) imposes a five-year lifetime limit on benefits and requires welfare recipients, including those who have young children and lack child care, to work in order to receive benefits.

In fact, the United Nations Human Rights Committee has charged that U.S. disenfranchisement policies are discriminatory and violate international law.

During Jim Crow, blacks were severely stigmatized and segregated on the basis of race, but in their own communities they could find support, solidarity, acceptance—love. Today, when those labeled criminals return to their communities, they are often met with scorn and contempt, not just by employers, welfare workers, and housing officials, but also by their own neighbors, teachers, and even members of their own families.

“Church? I wouldn’t dare tell anyone at church.”77 Far from being a place of comfort or refuge, churches can be a place where judgment, shame, and contempt are felt most acutely.

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.”

The notion that ghetto families do not, in fact, want those things, and instead are perfectly 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.

Yet our ability to exercise free will and transcend the most extraordinary obstacles does not make the conditions of our life irrelevant. Most of us struggle and often fail to meet the biggest challenges of our lives. Even the smaller challenges—breaking a bad habit or sticking to a diet—often prove too difficult, even for those of us who are relatively privileged and comfortable in our daily lives.

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

formal prohibition against race-based peremptory strikes does exist; as a practical matter, however, the Court has tolerated the systematic exclusion of blacks from juries by allowing lower courts to accept “silly” and even “superstitious” reasons for striking black jurors.

The Supreme Court’s famous proclamation in 1857—“[the black man] has no rights which the white man is bound to respect”—remains true to a significant degree today, so long as the black man has been labeled a felon.39

that is, the stigma of black criminality—has turned the black community against itself, destroyed networks of mutual support, and created a silence about the new caste system among many of the people most affected by it.

This system of control depends far more on racial indifference (defined as a lack of compassion and caring about race and racial groups) than racial hostility—a feature it actually shares with its predecessors.

The notion that racial caste systems are necessarily predicated on a desire to harm other racial groups, and that racial hostility is the essence of racism, is fundamentally misguided.

The history of marijuana policy is a good example. In the early 1900s, marijuana was perceived—rightly or wrongly—as a drug used by blacks and Mexican Americans, leading to the Boggs Act of the 1950s, penalizing first-time possession of marijuana with a sentence of two to five years in prison.68 In the 1960s, though, when marijuana became associated with the white middle class and college kids, commissions were promptly created to study whether marijuana was really as harmful as once thought. By 1970, the Comprehensive Drug Abuse Prevention and Control Act differentiated marijuana from other narcotics and lowered federal penalties.69 The same drug that had been considered fearsome twenty years earlier, when associated with African Americans and Latinos, was refashioned as a relatively harmless drug when associated with whites.

Du Bois got it right a century ago: “the burden belongs to the nation, and the hands of none of us are clean if we bend not our energies to righting these great wrongs.”

Part of the answer is that civil rights organizations—like all institutions—are comprised of fallible human beings. The prevailing public consensus affects everyone, including civil rights advocates. Those of us in the civil rights community are not immune to the racial stereotypes that pervade media imagery and political rhetoric; nor do we operate outside of the political context. Like most people, we tend to resist believing that we might be part of the problem.

Lawyers have a tendency to identify and concentrate on problems they know how to solve—i.e., problems that can be solved through litigation. The mass incarceration of people of color is not that kind of problem.