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

by Michelle Alexander

many of the new civil rights laws were proving largely symbolic.16 Notably absent from the Fifteenth Amendment, for example, was language prohibiting the states from imposing educational, residential, or other qualifications for voting, thus leaving the door open to the states to impose poll taxes, literacy tests, and other devices to prevent blacks from voting.

Most blacks were too poor to sue to enforce their civil rights, and no organization like the NAACP yet existed to spread the risks and costs of litigation.

tens of thousands of African Americans were arbitrarily arrested during this period, many of them hit with court costs and fines, which had to be worked off in order to secure their release.18 With no means to pay off their “debts,” people in prisons were sold as forced laborers to lumber camps, brickyards, railroads, farms, plantations, and dozens of corporations throughout the South. Death rates were shockingly high, for the private contractors had no interest in the health and well-being of their laborers, unlike the earlier slave-owners who needed their slaves, at a minimum, to be healthy enough to survive hard labor. Laborers were subject to almost continual lashing by long horse whips, and those who collapsed due to injuries or exhaustion were often left to die.

Segregation laws were proposed as part of a deliberate effort to drive a wedge between poor whites and African Americans. These discriminatory 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.

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 ostracism that extended to schools, churches, housing, jobs, restrooms, hotels, restaurants, hospitals, orphanages, prisons, funeral homes, morgues, and cemeteries.

many scholars, however, is the influence of World War II. The blatant contradiction between the country’s opposition to the crimes of the Third Reich against European Jews and the continued existence of a racial caste system in the United States was proving embarrassing, severely damaging the nation’s credibility as leader of the “free world.” There was also increased concern that, without greater equality for African Americans, blacks would become susceptible to communist influence, given Russia’s commitment to both racial and economic equality.

In 1944, in Smith v. Allwright, the Supreme Court ended the use of the all-white primary election; and in 1946, the Court ruled that state laws requiring segregation on interstate buses were unconstitutional. Two years later, the Court voided any real estate agreements that racially discriminated against purchasers, and in 1949, the Court ruled that Texas’s segregated law school for blacks was inherently unequal and inferior in every respect to its law school for whites.

in more than one hundred cities.32 On June 12, 1963, President Kennedy announced that he would deliver to Congress a strong civil rights bill, a declaration that transformed him into a widely recognized ally of the Civil Rights Movement. Following Kennedy’s assassination, President Johnson professed his commitment to the goal of “the full assimilation of more than twenty million Negroes into American life,” and ensured the passage of comprehensive civil rights legislation. The Civil Rights Act of 1964 formally dismantled the Jim Crow system of discrimination in public accommodations, employment, voting, education, and federally financed activities. The Voting Rights Act of 1965 arguably had even greater scope, as it rendered illegal numerous discriminatory barriers to effective political participation by African Americans and mandated federal review of all new voting regulations so that it would be possible to determine whether their use would perpetuate voting discrimination. Within five years, the effects of the civil rights revolution were undeniable. Between 1964 and 1969, the percentage of African American adults registered to vote in the South soared. In Alabama the rate leaped from 19.3 percent to 61.3 percent; in Georgia, 27.4 percent to 60.4 percent; in Louisiana, 31.6 percent to 60.8 percent; and in Mississippi, 6.7 percent to 66.5 percent.33 Suddenly black children could shop in department stores, eat at restaurants, drink from water fountains, and go to amuseme...

The wave of activism associated with economic justice helped to focus President Kennedy’s attention on poverty and black unemployment.

The shift in focus served to align the goals of the Civil Rights Movement with key political goals of poor and working-class whites, who were also demanding economic reforms. As the Civil Rights Movement began to evolve into a “Poor People’s Movement,” it promised to address not only black poverty, but white poverty as well—thus raising the specter of a poor and working-class movement that cut across racial lines. Martin Luther King Jr. and other civil rights leaders made it clear that they viewed the eradication of economic inequality as the next front in the “human rights movement” and made great efforts to build multiracial coalitions that sought economic justice for all.

Proponents of racial hierarchy found they could install a new racial caste system without violating the law or the new limits of acceptable political discourse by demanding “law and order” rather than “segregation forever.”

In the years following Brown v. Board of Education, civil rights activists used direct-action tactics in an effort to force reluctant Southern states to desegregate public facilities. Southern governors and law enforcement officials often characterized these tactics as criminal and argued that the rise of the Civil Rights Movement was indicative of a breakdown of law and order.

Beginning in the 1960s, crime rates rose in the United States for a period of about ten years. Reported street crime quadrupled, and homicide rates nearly doubled. Despite significant controversy over the accuracy of crime statistics during this period (the FBI’s method of tracking crime was changing), sociologists and criminologists agree that crime did rise, in some categories quite sharply. The reasons for the crime wave are complex but can be explained in large part by the rise of the “baby boom” generation—the spike in the number of young men in the fifteen-to-twenty-four age group, which historically has been responsible for most crimes. The surge of young men in the population was occurring at precisely the same time that unemployment rates for black men were rising sharply, but the economic and demographic factors contributing to rising crime were not explored in the media. Instead, crime reports were sensationalized and offered as further evidence of the breakdown in lawfulness, morality, and social stability in the wake of the Civil Rights Movement.

Although law and order rhetoric ultimately failed to prevent the formal dismantling of the Jim Crow system, it proved highly effective in appealing to poor and working-class whites, particularly in the South,

This view received support from Daniel Patrick Moynihan’s now infamous report on the black family, which attributed black poverty to a black “subculture” and the “tangle of pathology” that characterized

Competing images of the poor as “deserving” and “undeserving” became central components of the debate.

In the 1968 election, race eclipsed class as the organizing principle of American politics, and by 1972, attitudes on racial issues rather than socioeconomic status were the primary determinant of voters’ political self-identification. The late 1960s and early 1970s marked the dramatic erosion in the belief among working-class whites that the condition of the poor, or those who fail to prosper, was the result of a faulty economic system that needed to be challenged. As the Edsalls explain, “the pitting of whites and blacks at the low end of the income distribution against each other intensified the view among many whites that the condition of life for the disadvantaged—particularly for disadvantaged blacks—is the responsibility of those afflicted, and not the responsibility of the larger society.”

The term welfare queen became a not-so-subtle code for “lazy, greedy, black ghetto mother.”

In October 1982, President Reagan officially announced his administration’s War on Drugs. At the time he declared this new war, less than 2 percent of the American public viewed drugs as the most important issue facing the nation.73 This fact was no deterrent to Reagan, for the drug war from the outset had little to do with public concern about drugs and much to do with public concern about race. By waging a war on drug users and dealers, Reagan made good on his promise to crack down on the racially defined “others”—the undeserving. Practically overnight the budgets of federal law enforcement agencies soared. Between 1980 and 1984, FBI antidrug funding increased from $8 million to $95 million.74 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.75 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.

In the early 1980s, just as the drug war was kicking off, inner-city communities were suffering from economic collapse. The blue-collar factory jobs that had been plentiful in urban areas in the 1950s and 1960s had suddenly disappeared.78 Prior to 1970, inner-city workers with relatively little formal education could find industrial employment close to home. Globalization, however, helped to change that.

Some countries faced with rising drug crime or seemingly intractable rates of drug abuse and drug addiction chose the path of drug treatment, prevention, education, or economic investment. Portugal, for example, responded to persistent problems of drug addiction and abuse by decriminalizing the possession of all drugs and redirecting the money that would have been spent putting drug users in cages into drug treatment and prevention. Ten years later, Portugal reported that rates of drug abuse and addiction had plummeted, and drug-related crime was on the decline as well.84 Numerous paths were available to our nation in the wake of the crack crisis, yet for reasons traceable largely to racial politics and fear mongering, we chose war. Conservatives found they could finally justify an all-out war on an “enemy” that had been racially defined years before.

“If we blame crime on crack, our politicians are off the hook. Forgotten are the failed schools, the malign welfare programs, the desolate neighborhoods, the wasted years. Only crack is to blame. One is tempted to think that if crack did not exist, someone somewhere would have received a Federal grant to develop it.”89 Critical voices, however, were lonely ones.

The act also expanded use of the death penalty for serious drug-related offenses and imposed new mandatory minimums for drug offenses, including a five-year mandatory minimum for simple possession of cocaine base—with no evidence of intent to sell. Remarkably, the penalty would apply to people with no prior criminal convictions. The severity of this punishment was unprecedented in the federal system. Until 1988, one year of imprisonment had been the maximum for possession of any amount of any drug.

largely unrelated to their likelihood of victimization.92 Whites, on average, are more punitive than blacks, despite the fact that blacks are far more likely to be victims of crime. Rural whites are often the most punitive, even though they are least likely to be crime victims.

In 1991, the Sentencing Project reported that the number of people behind bars in the United States was unprecedented in world history, and that one-fourth of young African American men were now under the control of the criminal justice system.

Approximately 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.

The vast majority of those arrested are charged with relatively minor crimes.

Quite to the contrary, 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.

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. Shortly before his death, Justice Thurgood Marshall felt compelled to remind his colleagues that there is, in fact, “no drug exception” written into the text of the Constitution.8 Most Americans do not know what the Fourth Amendment of the U.S. Constitution actually says or what it requires of the police. It states, in its entirety: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

Virtually all constitutionally protected civil liberties have been undermined by the drug war. The Court has been busy in recent years approving mandatory drug testing of employees and students, upholding random searches and sweeps of public schools and students, permitting police to obtain search warrants based on an anonymous informant’s tip, expanding the government’s wiretapping authority, legitimating the use of paid, unidentified informants by police and prosecutors, approving the use of helicopter surveillance of homes without a warrant, and allowing the forfeiture of cash, homes, and other property based on unproven allegations of illegal drug activity. For our purposes here, we limit our

Known as the stop-and-frisk rule, the Terry decision stands for the proposition that, so long as a police officer has “reasonable articulable suspicion” that someone is engaged in criminal activity and dangerous, it is constitutionally permissible to stop, question, and frisk him or her—even in the absence of probable cause.

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. The resulting “interviews” of passengers in these dragnet operations usually culminate in a request for “consent” to search the passenger’s luggage.12 Never do the officers inform passengers that they are free to remain silent or to refuse to answer questions. By proceeding systematically in this manner, the police are able to engage in an extremely high volume of searches. One officer was able to search over three thousand bags in a nine-month period employing these techniques.13 By and large, however, the hit rates are low. For example, in one case, a sweep of one hundred buses resulted in only seven arrests.

The U.S. Supreme Court reversed. The Court ruled that Bostick’s encounter with the police was purely voluntary, and therefore he was not “seized” within the meaning of the Fourth Amendment. Even if Bostick did not feel free to leave when confronted by police at the back of the bus, the proper question, according to the Court, was whether “a reasonable person” in Bostick’s shoes would have felt free to terminate the encounter. A reasonable person, the Court concluded, would have felt free to sit there and refuse to answer the police officer’s questions, and would have felt free to tell the officer “No, you can’t search my bag.”

As federal judge Prentiss Marshall explained, “The average person encountered will feel obliged to stop and respond. Few will feel that they can walk away or refuse to answer.”17 Professor Tracey Maclin put it this way: “Common sense teaches that most of us do not have the chutzpah or stupidity to tell a police officer to ‘get lost’ after he has stopped us and asked us for identification or questioned us about possible criminal conduct.”18 Other courts emphasized that granting police the freedom to stop, interrogate, and search anyone who consented would likely lead to racial and ethnic discrimination.

Studies have shown that Maclin’s common sense is correct: the overwhelming majority of people who are confronted by police and asked questions respond, and when asked to be searched, they comply.20 This is the case even among those, like Bostick, who have every reason to resist these tactics because they actually have something to hide.

Like consent searches, pretext stops are favorite tools of law enforcement in the War on Drugs. A classic pretext stop is a traffic stop motivated not by any desire to enforce traffic laws, but instead motivated by a desire to hunt for drugs in the absence of any evidence of illegal drug activity. In other words, police officers use minor traffic violations as an excuse—a pretext—to search for drugs, even though there is not a shred of evidence suggesting the motorist is violating drug laws.

The Supreme Court has ruled that walking a drug-sniffing dog around someone’s vehicle (or someone’s luggage) does not constitute a “search,” and therefore does not trigger Fourth Amendment scrutiny.22 If the dog alerts to drugs, then the officer has probable cause to search without the person’s consent. Naturally, in most cases, when someone is told that a drug-sniffing dog will be called, the seized individual backs down and “consents” to the search, as it has become apparent that the police are determined to conduct the search one way or another.

“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.”24 The program’s success requires police to stop “staggering” numbers of people in shotgun fashion.25 This “volume” approach to drug enforcement sweeps up extraordinary numbers of innocent people.

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.

“in practice, the drug-courier profile is a scattershot hodgepodge of traits and characteristics so expansive that it potentially justifies stopping anybody and everybody.”29 The profile can include traveling with luggage, traveling without luggage, driving an expensive car, driving a car that needs repairs, driving with out-of-state license plates, driving a rental car, driving with “mismatched occupants,” acting too calm, acting too nervous, dressing casually, wearing expensive clothing or jewelry, being one of the first to deplane, being one of the last to deplane, deplaning in the middle, paying for a ticket in cash, using large-denomination currency, using small-denomination currency, traveling alone, traveling with a companion, and so on. 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.”

it was necessary to build a consensus among state and local law enforcement agencies that the drug war should be a top priority in their hometowns. The solution: cash. 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.

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.

state and local law enforcement agencies were granted the authority to keep, for their own use, the vast majority of cash and assets they seized when waging the drug war.

Property or cash could be seized based on mere suspicion of illegal drug activity, and the seizure could occur without notice or hearing, upon an ex parte showing of mere probable cause to believe that the property had somehow been “involved” in a crime.

Not surprisingly, this drug forfeiture regime proved highly lucrative for law enforcement, offering more than enough incentive to wage the War on Drugs.

even though she herself committed no crime. Indeed, women who are involved in some relationship with men accused of drug crimes, typically husbands or boyfriends, are among the most frequent claimants in forfeiture proceedings.59 Courts have not been forgiving of women in these circumstances, frequently concluding that “the nature and circumstances of the marital relationship may give rise to an inference of knowledge by the spouse claiming innocent ownership.”60 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. Oddly,

Sometimes defenders have well over one hundred clients at a time; many of these clients are facing decades behind bars or life imprisonment. Too often the quality of court-appointed counsel is poor because the miserable working conditions and low pay discourage good attorneys from participating in the system.

The number of snitches in drug cases has soared in recent years, partly because the government has tempted people to “cooperate” with law enforcement by offering cash, putting them “on payroll,” and promising cuts of seized drug assets, but also because ratting out co-defendants, friends, family, or acquaintances is often the only

a conviction for selling a kilogram of heroin yields a mandatory ten-year sentence in U.S. federal court, compared with six months in prison in England.78 Remarkably, in the United States, a life sentence is deemed perfectly appropriate for someone whose only crime is a first-time drug offense.

Few would guess that our prison population leaped from approximately 350,000 to 2.3 million in such a short period of time due to changes in laws and policies, not changes in crime rates. Yet it has been changes in our laws—particularly the dramatic increases in the length of prison sentences—that has been responsible for the growth of our prison system, not increases in crime. One study suggests that the entire increase in the prison population from 1980 to 2001 can be explained by sentencing policy changes.