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

by Michelle Alexander

In 2005, for example, four out of five drug arrests were for possession, and only one out of five was for sales. Moreover, most people in state prison for drug offenses have no history of violence or significant selling activity.5

arrests for marijuana possession—a drug less harmful than tobacco or alcohol—accounted for nearly 80 percent of the growth in drug arrests in the 1990s.

Virtually all constitutionally protected civil liberties have been undermined by the drug war.

Today it is no longer necessary for the police to have any reason to believe that people are engaged in criminal activity or actually dangerous to stop and search them. As long as you give “consent,” the police can stop, interrogate, and search you for any reason or no reason at all.

The Court long ago acknowledged that effective use of consent searches by the police depends on the ignorance (and powerlessness) of those who are targeted. In Schneckloth v. Bustamonte, decided in 1973, the Court admitted that if waiver of one’s right to refuse consent were truly “knowing, intelligent, and voluntary,” it would “in practice create serious doubt whether consent searches would continue to be conducted.”21 In other words, consent searches are valuable tools for the police only because hardly anyone dares to say no.

In legal scholar Ricardo Bascuas’s words, “Operation Pipeline is exactly what the Framers meant to prohibit: a federally-run general search program that targets people without cause for suspicion, particularly those who belong to disfavored groups.”

It has been estimated that 95 percent of Pipeline stops yield no illegal drugs.27 One study found that up to 99 percent of traffic stops made by federally funded narcotics task forces result in no citation and that 98 percent of task-force searches during traffic stops are discretionary searches in which the officer searches the car with the driver’s verbal “consent” but has no other legal authority to do so.

Even striving to obey the law fits the profile! The Florida Highway Patrol Drug Courier Profile cautioned troopers to be suspicious of “scrupulous obedience to traffic laws.”30 As Cole points out, “such profiles do not so much focus an investigation as provide law enforcement officials a ready-made excuse for stopping whomever they please.”

Participation in the drug war required a diversion of resources away from more serious crimes, such as murder, rape, grand theft, and violent assault—all of which were of far greater concern to most communities than illegal drug use.

Huge cash grants were made to those law enforcement agencies that were willing to make drug-law enforcement a top priority. 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.

In fact, it is questionable whether any specialized drug enforcement activity would exist in some states without the Byrne program.

SWAT teams originated in the 1960s and gradually became more common in the 1970s, but until the drug war, they were used rarely, primarily for extraordinary emergency situations such as hostage takings, hijackings, or prison escapes. That changed in the 1980s, when local law enforcement agencies suddenly had access to cash and military equipment specifically for the purpose of conducting drug raids. Today, the most common use of SWAT teams is to serve narcotics warrants, usually with forced, unannounced entry into the home. In fact, in some jurisdictions drug warrants are served only by SWAT teams—regardless of the nature of the alleged drug crime.

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 activity, rather than an infusion of money and an intensified enforcement effort.

“All too often, defendants plead guilty, even if they are innocent, without really understanding their legal rights or what is occurring. Sometimes the proceedings reflect little or no recognition that the accused is mentally ill or does not adequately understand English. The fundamental right to a lawyer that Americans assume applies to everyone accused of criminal conduct effectively does not exist in practice for countless people across the United States.”

Never before in our history, though, have such an extraordinary number of people felt compelled to plead guilty, even if they are innocent, simply because the punishment for the minor, nonviolent offense with which they have been charged is so unbelievably severe.

Harsh sentencing laws encourage people to snitch.

The “assistance” provided by snitches is notoriously unreliable, as studies have documented countless informants who have fabricated stories about drug-related and other criminal activity in exchange for money or leniency in their pending criminal cases.73 While such conduct is deplorable, it is not difficult to understand. Who among us would not be tempted to lie if it was the only way to avoid a forty-year sentence for a minor drug crime?

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.”

A life sentence for a first-time drug offense is unheard of in the rest of the developed world. Even for high-end drug crimes, most countries impose sentences that are measured in months, rather than years.

To put the matter more starkly: About as many people were returned to prison for parole violations in 2000 as were admitted to prison in 1980 for all reasons.94 Of all parole violators returned to prison in 2000, only one-third were returned for a new conviction; two-thirds were returned for a technical violation such as missing appointments with a parole officer, failing to maintain employment, or failing a drug test.95 In this system of control, failing to cope well with one’s exile status is treated like a crime. If you fail, after being released from prison with a criminal record—your personal badge of inferiority—to remain drug free, or if you fail to get a job against all the odds, or if you get depressed and miss an appointment with your parole officer (or if you cannot afford the bus fare to take you there), you can be sent right back to prison—where society apparently thinks millions of Americans belong.

Hundreds of thousands of people are released from prison every year, only to find themselves locked out of the mainstream society and economy. Most ultimately return to prison, sometimes for the rest of their lives. Others are released again, only to find themselves in precisely the circumstances they occupied before, unable to cope with the stigma of the prison label and their permanent pariah status.

Unless the number of people who are labeled felons is dramatically reduced, and unless the laws and policies that keep people with criminal records marginalized from the mainstream society and economy are eliminated, the system will continue to create and maintain an enormous undercaste.

Although the majority of illegal drug users and dealers nationwide are white, three-fourths of all people imprisoned for drug offenses have been black or Latino.

One study, for example, published in 2000 by the National Institute on Drug Abuse reported that white students use cocaine at seven times the rate of black students, use crack cocaine at eight times the rate of black students, and use heroin at seven times the rate of black students.12 That same survey revealed that nearly identical percentages of white and black high school seniors use marijuana. The National Household Survey on Drug Abuse reported in 2000 that white youth aged 12–17 are more than a third more likely to have sold illegal drugs than African American youth.

white youth were actually the most likely of any racial or ethnic group to be guilty of illegal drug possession and sales.

violent crime is not responsible for mass incarceration. As numerous researchers have shown, violent crime rates have fluctuated over the years and bear little relationship to incarceration rates—which have soared during the past three decades regardless of whether violent crime was going up or down.23 Today violent crime rates are at historically low levels, yet incarceration rates continue to climb.

Unbridled discretion inevitably creates huge racial disparities.

Another commentator noted, “It is unnecessary to speak directly of race [today] because speaking about crime is talking about race.”36 Indeed, not long after the drug war was ramped up in the media and political discourse, almost no one imagined that “drug criminals” could be anything other than black.

In other words, the Court barred any victim of race discrimination by the police from even alleging a claim of racial bias under the Fourth Amendment. 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.

The study found that defendants charged with killing white victims received the death penalty eleven times more often than defendants charged with killing black victims. Georgia prosecutors seemed largely to blame for the disparity; they sought the death penalty in 70 percent of cases involving black defendants and white victims, but only 19 percent of cases involving white defendants and black victims.

Angela J. Davis, in her authoritative study Arbitrary Justice: The Power of the American Prosecutor, observes that “the most remarkable feature of these important, sometimes life-and-death decisions is that they are totally discretionary and virtually unreviewable.”

Immunizing prosecutors from claims of racial bias and failing to impose any meaningful check on the exercise of their discretion in charging, plea bargaining, transferring cases, and sentencing has created an environment in which conscious and unconscious biases are allowed to flourish.

peremptory challenges are notoriously discriminatory. Lawyers typically have little information about potential jurors, so their decisions to strike individual jurors tend to be based on nothing more than stereotypes, prejudices, and hunches.

Potential jurors are typically called for service based on the list of registered voters or Department of Motor Vehicle lists—sources that contain disproportionately fewer people of color, because people of color are significantly less likely to own cars or register to vote. Making matters worse, thirty-one states and the federal government subscribe to the practice of lifetime felon exclusion from juries. As a result, about 30 percent of black men are automatically banned from jury service for life.

Sociologists have been major proponents of this line of reasoning, pointing out that differential access to private space influences the likelihood that criminal behavior will be detected. Because poor people lack access to private space (often sharing small apartments with numerous family members or relatives), their criminal activity is more likely to be conducted outdoors.

“[The Seattle Police Department’s] focus on black and Latino individuals and on the drug most strongly associated with ‘blackness’ suggest that law enforcement policies and practices are predicated on the assumption that the drug problem is, in fact, a black and Latino one, and that crack, the drug most strongly associated with urban blacks, is ‘the worst.’”88 This racialized cultural script about who and what constitutes the drug problem renders illegal drug activity by whites invisible. “White people,” the study’s authors observed, “are simply not perceived as drug offenders by Seattle police officers.”89

But the Supreme Court has indicated that in policing, race can be used as a factor in discretionary decision making. In United States v. Brignoni-Ponce, the Court concluded it was permissible under the equal protection clause of the Fourteenth Amendment for the police to use race as a factor in making decisions about which motorists to stop and search.

Because the Supreme Court has authorized the police to use race as a factor when making decisions regarding whom to stop and search, police departments 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.

African Americans were stopped six times more frequently than whites, and that stops of African Americans were less likely to result in arrests than stops of whites—presumably because blacks were less likely to be found with drugs or other contraband.

The problem, however, is twofold: these vulnerable families have nowhere to go, and the impact is inevitably discriminatory. People who are not poor and who are not dependent upon public assistance for housing need not fear that, if their son, daughter, caregiver, or relative is caught with some marijuana at school or shoplifts from a drugstore, they will find themselves suddenly evicted—homeless. 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.

Access to decent, stable, and affordable housing is a basic human right, and it also increases substantially the likelihood a person with a past criminal record will obtain and retain employment and remain drug- and crime-free.

About 70 percent of people with criminal records did not complete high school, and according to at least one study, about half are functionally illiterate.26 Many are tracked for prison at early ages, labeled as criminals in their teen years, and then shuttled from their decrepit, underfunded inner-city schools to brand-new, high-tech prisons. The communities and schools from which they come fail to prepare them for the workforce, and once they have been labeled criminals, their job prospects are forever bleak.

Manufacturing jobs, however, have all but disappeared from the urban core during the past thirty years. Not long ago, young, unskilled men could find decent, well-paying jobs at large factories in most major Northern cities. Today, due to globalization and deindustrialization, that is no longer the case. Jobs can be found in the suburbs—mostly service sector jobs—but employment for unskilled men with criminal convictions, while difficult to find anywhere, is especially hard to find close to home.

If you make $9 per hour, but spend $20 dollars or more getting to and from work every day, how do you manage to pay rent, buy food, and help to support yourself and a growing family?

Black men convicted of felonies are the least likely to receive job offers of any demographic group, and suburban employers are the most unwilling to hire them.

a formerly incarcerated person living at or below the poverty level can be charged by four or five departments at once and can be required to surrender 100 percent of his or her earnings. As a New York Times editorial soberly observed, “People caught in this impossible predicament are less likely to seek regular employment, making them even more susceptible to criminal relapse.”

Although “debtor’s prison” is illegal in all states, many states use the threat of probation or parole revocation as a debt-collection tool. In fact, in some jurisdictions, individuals may “choose” to go to jail as a way to reduce their debt burdens, a practice that has been challenged as unconstitutional.45 Adding to the insanity, many states suspend driving privileges for missed debt payments, a practice that often causes people to lose employment (if they had it) and creates yet another opportunity for jail time: driving with a suspended license.46 In this regime, many people are thrown back in prison simply because they have been unable—with no place to live, and no decent job—to pay back thousands of dollars of prison-related fees, fines, and child support.

Following the election, it was widely reported that, had the 600,000 formerly incarcerated people who had completed their sentence in Florida been allowed to vote, Al Gore would have been elected president of the United States rather than George W. Bush.

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.”84 Nowhere is that observation more relevant in American society today than in an analysis of the culture of mass incarceration.

Economist Glenn Loury once posed the question: “are we willing to cast ourselves as a society that creates crimogenic conditions for some of its members, and then acts out rituals of punishment against them as if engaged in some awful form of human sacrifice?” A similar question 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 failing to behave like model citizens while under attack?