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

by Michelle Alexander

Every system of injustice depends on the silence, paralysis, confusion, and cooperation of those it seeks to eliminate or control.

The safest communities are not the ones with the most police, prisons, or electronic monitors, but the ones with quality schools, health care, housing, plentiful jobs, and strong social networks that allow families not merely to survive but to thrive.

The notion that if you’ve ever committed a crime you’re permanently disposable is the very idea that has rationalized mass incarceration in the United States.

Rationalizing mass incarceration or mass deportation on the grounds that it is meant to rid our nation of “criminals” perpetuates the false notion that “criminals” are a monolithic, deviant group that is fundamentally different than “us” and therefore unworthy of our concern.

If there is any silver lining to be found in the election of Donald Trump to the presidency, it is that millions of people have been inspired to demonstrate solidarity on a large scale across the lines of gender, race, and class in defense of those who have been demonized and targeted for elimination.

The United States now has the highest rate of incarceration in the world, dwarfing the rates of nearly every developed country, even surpassing those in highly repressive regimes like Russia, China, and Iran. 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 (alleged) misbehaviors of the poor were transformed from adaptations to poverty that had the unfortunate effect of reproducing it into character failings that accounted for poverty in the first place.”57 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.

a disproportionate share of the costs of integration and racial equality had been borne by lower- and lower-middle-class whites, who were suddenly forced to compete on equal terms with blacks for jobs and status and who lived in neighborhoods adjoining black ghettos. Their children—not the children of wealthy whites—attended schools most likely to fall under busing orders. 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.”59 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.

There are other problems with this framework, not the least of which being that the owner of the property is not entitled to the appointment of counsel in the forfeiture proceeding, unless he or she has been charged with a crime. The overwhelming majority of forfeiture cases do not involve any criminal charges, so the vast majority of people who have their cash, cars, or homes seized must represent themselves in court, against the federal government.

The greatest failure of the Reform Act, however, has nothing to do with one’s due process rights once property has been seized in a drug investigation. Despite all of the new procedural rules and formal protections, the law does not address the single most serious problem associated with drug forfeiture laws: the profit motive in drug-law enforcement. Under the new law, drug busts motivated by the desire to seize cash, cars, homes, and other property are still perfectly legal. Law enforcement agencies are still allowed, through revenue-sharing agreements with the federal government, to keep seized assets for their own use. Clearly, so long as law enforcement is free to seize assets allegedly associated with illegal drug activity—without ever charging anyone with a crime—local police departments, as well as state and federal law enforcement agencies, will continue to have a direct pecuniary interest in the profitability and longevity of the drug war.

“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.”

Once a person is labeled a felon, he or she is ushered into a parallel universe in which discrimination, stigma, and exclusion are perfectly legal, and privileges of citizenship such as voting and jury service are off-limits. It does not matter whether you have actually spent time in prison; your second-class citizenship begins the moment you are branded a felon. Most people branded felons, in fact, are not sentenced to prison.

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.

A criminal record today authorizes precisely the forms of discrimination we supposedly left behind—discrimination in employment, housing, education, public benefits, and jury service. Those labeled criminals can even be denied the right to vote.

He will also be told little or nothing about the parallel universe he is about to enter, one that promises a form of punishment that is often more difficult to bear than prison time: a lifetime of shame, contempt, scorn, and exclusion. In this hidden world, discrimination is perfectly legal. As Jeremy Travis has observed, “In this brave new world, punishment for the original offense is no longer enough; one’s debt to society is never paid.”3 Other commentators liken the prison label to “the mark of Cain” and characterize the perpetual nature of the sanction as “internal exile.”4 Myriad laws, rules, and regulations operate to discriminate against people with criminal records and effectively prevent their reintegration into the mainstream society and economy.

The U.S. Supreme Court reversed.15 The Court ruled in 2002 that, under federal law, public housing tenants can be evicted regardless of whether they had knowledge of or participated in alleged criminal activity. According to the Court, William Lee and Barbara Hill were rightfully evicted after their grandsons were charged with smoking marijuana in a parking lot near their apartments.

Some scholars believe, based on the available data, that black males may suffer more discrimination—not less—when specific criminal history information is not available.37 Because the association of race and criminality is so pervasive, employers may use less accurate and discriminatory methods to screen out those perceived to be likely criminals.

Because mass incarceration is officially colorblind, it seems inconceivable that the system could function much like a racial caste system. 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.

The institution of slavery did not require plantation owners or countless bystanders to be filled with racial hostility; so long as plantation owners and a critical mass of white Americans remained indifferent to the suffering inflicted on black slaves, the racial caste system could endure. Indeed, it lasted for centuries. Preoccupation with the role of racial hostility in earlier caste systems can blind us to the ways in which every caste system, including mass incarceration, has been supported by racial indifference—a lack of care and compassion for people of other races.

He noted that it is nearly impossible to imagine anything remotely similar to mass incarceration happening to young white men. Can we envision a system that would enforce drug laws almost exclusively among young white men and largely ignore drug crime among young black men? Can we imagine large majorities of young white men being rounded up for minor drug offenses, placed under the control of the criminal justice system, labeled felons, and then subjected to a lifetime of discrimination, scorn, and exclusion?

The notion that a vast gulf exists between “criminals” and those of us who have never served time in prison is a fiction created by the racial ideology that birthed mass incarceration, namely that there is something fundamentally wrong and morally inferior about “them.” The reality, though, is that all of us have done wrong. As noted earlier, studies suggest that most Americans violate drug laws in their lifetime. Indeed, most of us break the law not once but repeatedly throughout our lives. Yet only some of us will be arrested, charged, convicted of a crime, branded a criminal or felon, and ushered into a permanent undercaste.

“Individuals are forced to make choices in an environment they did not choose. They would surely prefer to have a broader array of good opportunities. The question we should be asking—not instead of but in addition to questions about penal policy—is whether the denizens of the ghetto are entitled to a better set of options, and if so, whose responsibility it is to provide them.”

If we hope to end this system of control, we cannot be satisfied with a handful of reforms. All of the financial incentives granted to law enforcement to arrest poor black and brown people for drug offenses must be revoked. Federal grant money for drug enforcement must end; drug forfeiture laws must be stripped from the books; racial profiling must be eradicated; the concentration of drug busts in poor communities of color must cease; and the transfer of military equipment and aid to local law enforcement agencies waging the drug war must come to a screeching halt. And that’s just for starters.

Data collection for police and prosecutors should be mandated nationwide in order to monitor and challenge selective enforcement. Racial impact statements that assess the racial and ethnic impact of criminal justice legislation must be adopted.20 Public defender offices should be funded at the same level as prosecutor offices. The list goes on: Mandatory drug sentencing laws must be rescinded. Marijuana ought to be legalized (and perhaps other drugs as well). Meaningful re-entry programs must be adopted—programs that provide a pathway not just to dead-end, minimum-wage jobs, but also training and education so those labeled criminals can realistically reach for high-paying jobs and viable, rewarding career paths. Prison workers should be retrained for jobs and careers that do not involve caging human beings. Drug treatment on demand must be provided for all Americans, a far better investment of taxpayer money than prison cells for people struggling with drug addiction. Barriers to re-entry, specifically the myriad laws that operate to discriminate against people with criminal records in every aspect of their social, economic, and political lives, must be eliminated.

A civil war had to be waged to end slavery; a mass movement was necessary to bring a formal end to Jim Crow. Those who imagine that far less is required to dismantle mass incarceration and build a new, egalitarian racial consensus reflecting a compassionate rather than punitive impulse toward poor people of color fail to appreciate the distance between Martin Luther King Jr.’s dream and the ongoing racial nightmare for those locked up and locked out of American society.

Highly visible examples of black success are critical to the maintenance of a racial caste system in the era of colorblindness. Black success stories lend credence to the notion that anyone, no matter how poor or how black you may be, can make it to the top, if only you try hard enough. 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.