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

by Michelle Alexander

About as many people were returned to prison for parole violations in 2000 as were admitted to prison in 1980 for all reasons.

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.

People of color are convicted of drug offenses at rates out of all proportion to their drug crimes, a fact that has greatly contributed to the emergence of a vast new racial undercaste—a system of mass incarceration that governs the lives of millions of people inside and outside of prison walls.

how exactly does a formally colorblind criminal justice system achieve such racially discriminatory results? Rather easily, it turns out. The process occurs in two stages. The first step is to grant law enforcement officials extraordinary discretion regarding whom to stop, search, arrest, and charge for drug offenses, thus ensuring that conscious and unconscious racial beliefs and stereotypes will be given free rein. Unbridled discretion inevitably creates huge racial disparities. Then, the damning step: close the courthouse doors to all claims by defendants and private litigants that the criminal justice system operates in racially discriminatory fashion. Demand that anyone who wants to challenge racial bias in the system offer, in advance, clear proof that the racial disparities are the product of intentional racial discrimination—i.e., the work of a bigot.

These rules have also guaranteed racially discriminatory results. The reason is this: drug-law enforcement is unlike most other types of law enforcement. When a violent crime or a robbery occurs, the criminal activity usually causes harm or violates someone’s rights. But with drug crime, neither the purchaser of the drugs nor the seller has any incentive to contact law enforcement. It is consensual activity. Equally important, it is popular. The clear majority of Americans of all races have violated drug laws in their lifetime. In fact, in any given year, more than one in ten Americans violate drug laws.

The ubiquity of illegal drug activity, combined with its consensual nature, requires a far more proactive approach by law enforcement than what is required to address ordinary street crime. It is impossible for law enforcement to identify and arrest everyone who commits a drug crime. Strategic choices must be made about whom to target and what tactics to employ. Police and prosecutors did not declare the War on Drugs—and some initially opposed it—but once the financial incentives for waging the war became too attractive to ignore, law enforcement agencies had to ask themselves, if we’re going to wage this war, where should it be fought and who should be taken prisoner?

The risk that African Americans would be unfairly targeted should have been of special concern to the U.S. Supreme Court—the one branch of government charged with the responsibility of protecting “discrete and insular minorities” from the excesses of majoritarian democracy and guaranteeing constitutional rights for groups deemed unpopular or subject to prejudice.50 Yet when the time came for the Supreme Court to devise the legal rules that would govern the War on Drugs, the Court adopted rules that would maximize—not minimize—the amount of racial discrimination that would likely occur. It then closed the courthouse doors to claims of racial bias.

In support of his claim, he offered an exhaustive study of more than two thousand murder cases in Georgia. The study was known as the Baldus study—named after Professor David Baldus, who was its lead author. 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.

As a result of the Armstrong decision, defendants who suspect racial bias on the part of prosecutors are trapped in a classic catch-22. In order to state a claim of selective prosecution, they are required to offer in advance the very evidence that generally can be obtained only through discovery of the prosecutor’s files. The Court justified this insurmountable hurdle on the grounds that considerable deference is owed the exercise of prosecutorial discretion. Unless evidence of conscious, intentional bias on the part of the prosecutor could be produced, the Court would not allow any inquiry into the reasons for or causes of apparent racial disparities in prosecutorial decision making. Again the courthouse doors were closed, for all practical purposes, to claims of racial bias in the administration of the criminal justice system.

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. Achieving an all-white jury, or nearly all-white jury, is easy in most jurisdictions, because relatively few racial minorities are included in the jury pool.

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.

one comprehensive study reviewed all published decisions involving Batson challenges from 1986 to 1992 and concluded that prosecutors almost never fail to successfully craft acceptable race-neutral explanations to justify striking black jurors.77 Courts accept explanations that jurors are too young, too old, too conservative, too liberal, too comfortable, or too uncomfortable. Clothing is also

a favorite reason; jurors have been stricken for wearing hats or sunglasses. Even explanations that might correlate with race, such as lack of education, unemployment, poverty, being single, living in the same neighborhood as the defendant, or prior involvement with the criminal justice system—have all been accepted as perfectly good, non-pretextual excuses for striking African Americans from juries.

From the outset, the drug war could have been waged primarily in overwhelmingly white suburbs or on college campuses. SWAT teams could have rappelled from helicopters in gated suburban communities and raided the homes of high school lacrosse players known for hosting coke and ecstasy parties after their games. The police could have seized televisions, furniture, and cash from fraternity houses based on an anonymous tip that a few joints or a stash of cocaine could be found hidden in someone’s dresser drawer. Suburban homemakers could have been placed under surveillance and subjected to undercover operations designed to catch them violating laws regulating the use and sale of prescription “uppers.” All of this could have happened as a matter of routine in white communities, but it did not. Instead, when police go looking for drugs, they look in the ’hood. Tactics that would be political suicide in an upscale white suburb are not even newsworthy in poor black and brown communities.

Concentrating law enforcement efforts in locations where drug activity will be more easily detected is viewed as a race-neutral organizational necessity.

In racially mixed open-air drug markets, black dealers were far more likely to be arrested than whites, even though white dealers were present and visible.

to establish an equal-protection violation, one must prove intentional discrimination—conscious racial bias. Law enforcement officials rarely admit to having acted for racial reasons, leaving most victims of discriminatory law enforcement without anyone to sue and without a claim that can be proven in a court of law.

The dirty little secret of policing is that the Supreme Court has actually granted the police license to discriminate.

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.

police departments believe that racial profiling exists only when race is the sole factor.

The problem, of course, is that whether or not race is the sole reason for a stop or search, it is frequently a determinative reason.

What most surprised many analysts was that, in both studies, whites were actually more likely than people of color to be carrying illegal drugs or contraband in their vehicles. In fact, in New Jersey, whites were almost twice as likely to be found with illegal drugs or contraband as African Americans, and five times as likely to be found with contraband as Latinos.100 Although whites were more likely to be guilty of carrying drugs, they were far less likely to be viewed as suspicious, resulting in relatively few stops, searches, and arrests of whites.

The lawsuits have disappeared because, in a little noticed case called Alexander v. Sandoval, decided in 2001, the Supreme Court eliminated the last remaining avenue available for challenging racial bias in the criminal justice system.116 Sandoval was not, on its face, even about criminal justice. It was a case challenging the Alabama Department of Public Safety’s decision to administer state driver’s license examinations only in English. The plaintiffs argued that the department’s policy violated Title VI of the Civil Rights Act of 1964 and its implementing regulations, because the policy had the effect of subjecting non-English speakers to discrimination based on their national origin. The Supreme Court did not reach the merits of the case, ruling instead that the plaintiffs lacked the legal right even to file the lawsuit. It concluded that Title VI does not provide a “private right of action” to ordinary citizens and civil rights groups; meaning that victims of discrimination can no longer sue under the law. The Sandoval decision virtually wiped out racial profiling litigation nationwide.

Blacks were finally free from the formal control of their owners, but they were not full citizens—they could not vote, they were subject to legal discrimination, and at any moment, Southern plantation owners could capture them on the street and whisk them back to slavery. Although Northern slavery had been abolished, every black person was still presumed a slave—by law—and could not testify or introduce evidence in court.

Today a criminal freed from prison has scarcely more rights, and arguably less respect, than a freed slave or a black person living “free” in Mississippi at the height of Jim Crow. Those released from prison on parole can be stopped and searched by the police for any reason—or no reason at all—and returned to prison for the most minor of infractions, such as failing to attend a meeting with a parole officer. Even when released from the system’s formal control, the stigma of criminality lingers. Police supervision, monitoring, and harassment are facts of life not only for all those labeled criminals, but for all those who “look like” criminals. Lynch mobs may be long gone, but the threat of police violence is ever present. A wrong move or sudden gesture could mean massive retaliation by the police. A wallet could be mistaken for a gun. The “whites only” signs may be gone, but new signs have gone up—notices placed in job applications, rental agreements, loan applications, forms for welfare benefits, school applications, and petitions for licenses, informing the general public that “felons” are not wanted here. 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. Criminals, it turns out, are the one social group in America we have permission to hate. In “colorblind” America, criminals a...

When a defendant pleads guilty to a minor drug offense, nobody will likely tell him that he may be permanently forfeiting his right to vote as well as his right to serve on a jury—two of the most fundamental rights in any modern democracy.

Take for example, the forty-two-year-old African American man who applied for public housing for himself and his three children who were living with him at the time.13 He was denied because of an earlier drug possession charge for which he had pleaded guilty and served thirty days in jail. Of course, the odds that he would have been convicted of drug possession would have been extremely low if he were white. But as an African American, he was not only targeted by the drug war but then denied access to housing because of his conviction. Since being denied housing, he has lost custody of his children and is homeless. Many nights he sleeps outside on the streets. Stiff punishment, indeed, for a minor drug offense—especially for his children, who are innocent of any crime.

Similarly, a California study reported that an estimated 30 to 50 percent of individuals under parole supervision in San Francisco and Los Angeles were homeless.

with supportive housing.17 People returning “home” from prison are typically the poorest of the poor, lacking the ability to pay for private housing and routinely denied public housing assistance—the type of assistance which could provide some much-needed stability in their lives. For them, “going home” is more a figure of speech than a realistic option.

Nearly every state allows private employers to discriminate on the basis of past criminal convictions.

Willingness to hire people with criminal records is greatest in construction or manufacturing—industries that require little customer contact—and weakest in retail trade and other service sector businesses.28 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. A person whose driver’s license has been suspended due to a criminal conviction or who does not have access to a car often faces nearly insurmountable barriers to finding employment. Driving to the suburbs to pick up and drop off applications, attend interviews, and pursue employment leads may be perfectly feasible if you have a driver’s license and access to a vehicle, but attempting to do so by bus is another matter entirely.

Throughout the United States, people who are newly released from prison are required to make payments to a host of agencies, including probation departments, courts, and child-support enforcement offices. In some jurisdictions, they are billed for drug testing and even for the drug treatment they are supposed to receive as a condition of parole. These fees, costs, and fines are generally quite new—created by law within the past twenty years

Many states utilize “poverty penalties”—piling on additional late fees, payment plan fees, and interest when individuals are unable to pay all their debts at once, often enriching private debt collectors in the process.

Two-thirds of people detained in jails report annual incomes under $12,000 prior to arrest. Predictably, most people find themselves unable to pay the many fees, costs, and fines associated with their imprisonment, as well as their child-support debts (which continue to accumulate while a person is incarcerated). As a result, many have their paychecks garnished. Federal law provides that a child-support enforcement officer can garnish up to 65 percent of an individual’s wages for child support. On top of that, probation officers in most states can require that an individual dedicate 35 percent of his or her income toward the payment of fines, fees, surcharges, and restitution charged by numerous agencies.43 Accordingly, 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.”

Today, many incarcerated people work in prison, typically earning far less than the minimum wage—often less than $3 per hour, sometimes as little as 25 cents. Their accounts are then “charged” for various expenses related to their incarceration, making it impossible for them to save the money that otherwise would allow them to pay off their debts or help them make a successful transition when released from prison. Typically, people are released from prison with only the clothes on their backs and a pittance in gate money. Sometimes the money is barely enough to cover the cost of a bus ticket back home.

Even after the term of punishment expires, some states deny the right to vote for a period ranging from a number of years to the rest of one’s life.50 This is far from the norm in other countries—like Germany, for instance, which allows (and even encourages) people to vote in prison. In fact, about half of European countries allow all people behind bars to vote, while others disqualify only a small number from the polls.51 People in prison vote either in their correctional facilities or by some version of absentee ballot in their town of previous residence. Almost all of the countries that place some restrictions on voting in prison are in Eastern Europe, part of the former Communist bloc.

Four years later, voter registration workers in the South encountered scores of people with criminal records who were reluctant to register to vote, even if they were technically eligible, because they were scared to have any contact with governmental authorities. Many on welfare were worried that any little thing they did to bring attention to themselves might put their food stamps at risk. Others had been told by parole and probation officers that they could not vote, and although it was not true, they believed it, and the news spread like wildfire.

the biggest problem the black community may face today is not “shamelessness” but rather the severe isolation, distrust, and alienation created by mass incarceration. 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. This is so, even when they have been imprisoned for minor offenses, such as possession and sale of a small amount of drugs. Young black males in their teens are often told “you’ll amount to nothing” or “you’ll find yourself back in jail, just like your father”—a not-so-subtle suggestion that a shameful defect lies deep within them, an inherited trait perhaps—part of their genetic makeup. “You are a criminal, nothing but a criminal. You are a no good criminal.”73 The anger and frustration directed at young black men returning home from prison is understandable, given that they are returning to communities that are hurt by joblessness and crime. These communities desperately need their young men to be holding down jobs and supporting their families, rather than wasting away in prison cells. While there is widespread recognition that the War on Drugs is racist and that politicians have refused t...

But just because the prison label has become normal does not mean that it is generally viewed as acceptable. Poor people of color, like other Americans—indeed like nearly everyone around the world—want safe streets, peaceful communities, healthy families, good jobs, and meaningful opportunities to contribute to society. The notion that families struggling in ghettoized neighborhoods 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.

many fathers are in prison, and those who are “free” bear the prison label. They are often unable to provide for, or meaningfully contribute to, a family. Any wonder, then, that many youth embrace their stigmatized identity as a means of survival in this new caste system? Should we be shocked when they turn to gangs for support when no viable family support structure exists? After all, in many respects, they are simply doing what black people did during the Jim Crow era—they are turning to each other for support and solace in a society that despises them.

The worst of gangsta rap and other forms of blaxploitation (such as VH1’s Flavor of Love) is best understood as a modern-day minstrel show, only this time televised around the clock for a worldwide audience. It is a for-profit display of the worst racial stereotypes and images associated with the era of mass incarceration—an era in which black people are criminalized and portrayed as out-of-control, shameless, violent, oversexed, and generally undeserving.

Historians have long debated why blacks would attend minstrel shows when the images and content were so blatantly racist. Minstrels projected a greatly romanticized and exaggerated image of black life on plantations with cheerful, simple, grinning slaves always ready to sing, dance, and please their masters. Some have suggested that perhaps blacks felt in on the joke, laughing at the over-the-top characters from a sense of “in-group recognition.”90 It has also been argued that perhaps they felt some connection to elements of African culture that had been suppressed and condemned for so long but were suddenly visible on stage, albeit in racist, exaggerated form.91 Undeniably, though, one major draw for black audiences was simply seeing fellow African Americans on stage. Black minstrels were largely viewed as celebrities, earning more money and achieving more fame than African Americans ever had before.

When the system of mass incarceration collapses (and if history is any guide, it will), historians will undoubtedly look back and marvel that such an extraordinarily comprehensive system of racialized social control existed in the United States. How fascinating, they will likely say, that a drug war was waged almost exclusively against poor people of color—people already trapped in ghettos that lacked jobs and decent schools. They were rounded up by the millions, packed away in prisons, and when released, they were stigmatized for life, denied the right to vote, and ushered into a world of discrimination. Legally barred from employment, housing, and welfare benefits—and saddled with thousands of dollars of debt—these people were shamed and condemned for failing to hold together their families. They were chastised for succumbing to depression and anger, and blamed for landing back in prison. Historians will likely wonder how we could describe the new caste system as a system of crime control, when it is difficult to imagine a system better designed to create—rather than prevent—crime.

The sense that black men have disappeared is rooted in reality. The U.S. Census Bureau reported in 2002 that there are nearly 3 million more black adult women than men in black communities across the United States, a gender gap of 26 percent.3 In many urban areas, the gap is far worse, rising to more than 37 percent in places like New York City. The comparable disparity for whites in the United States is 8 percent.4 Although a million black men can be found in prisons and jails, public acknowledgment of the role of the criminal justice system in “disappearing” black men is surprisingly rare. Even in the black media—which is generally more willing to raise and tackle issues related to criminal justice—an eerie silence can often be found.

Today, most Americans know and don’t know the truth about mass incarceration. For more than three decades, images of black men in handcuffs have been a regular staple of the evening news. We know that large numbers of black men have been locked in cages. In fact, it is precisely because we know that black and brown people are far more likely to be imprisoned that we, as a nation, have not cared too much about it. We tell ourselves they “deserve” their fate, even though we know—and don’t know—that whites are just as likely to commit many crimes, especially drug crimes. We know that people released from prison face a lifetime of discrimination, scorn, and exclusion, and yet we claim not to know that an undercaste exists. We know and we don’t know at the same time.

Only when we view the cage from a distance can we disengage from the maze of rationalizations that are offered for each wire and see how the entire apparatus operates to keep African Americans perpetually trapped. This, in brief, is how the system works: the War on Drugs is a vehicle through which extraordinary numbers of black men are forced into the cage. The entrapment occurs in three distinct phases, each of which has been explored earlier, but a brief review is useful here. The first stage is the roundup. Vast numbers of people are swept into the criminal justice system by the police, who conduct drug operations primarily in poor communities of color. They are rewarded in cash—through drug forfeiture laws and federal grant programs—for rounding up as many people as possible, and they operate unconstrained by constitutional rules of procedure that once were considered inviolate. Police can stop, interrogate, and search anyone they choose for drug investigations, provided they get “consent.” Because there is no meaningful check on the exercise of police discretion, racial biases are granted free rein. In fact, police are allowed to rely on race as a factor in selecting whom to stop and search (even though people of color are no more likely to be guilty of drug crimes than whites)—effectively guaranteeing that those who are swept into the system are primarily black and brown. The conviction marks the beginning of the second phase: the period of formal control. Once arres...

Listed below are several of the most obvious similarities between Jim Crow and mass incarceration, followed by a discussion of a few parallels that have not been discussed so far. Let’s begin with the historical parallels. Historical parallels. Jim Crow and mass incarceration have similar political origins. As described in chapter 1, both caste systems were born, in part, due to a desire among white elites to exploit the resentments, vulnerabilities, and racial biases of poor and working-class whites for political or economic gain.

Legalized discrimination. The most obvious parallel between Jim Crow and mass incarceration is legalized discrimination. During Black History Month, Americans congratulate themselves for having put an end to discrimination against African Americans in employment, housing, public benefits, and public accommodations. Schoolchildren wonder out loud how discrimination could ever have been legal in this great land of ours. Rarely are they told that it is still legal. Many of the forms of discrimination that relegated African Americans to an inferior caste during Jim Crow continue to apply to huge segments of the black population today—provided they are first labeled felons. If they are branded felons by the time they reach the age of twenty-one (as many of them are), they are subject to legalized discrimination for their entire adult lives.

Political disenfranchisement. During the Jim Crow era, African Americans were denied the right to vote through poll taxes, literacy tests, grandfather clauses, and felon disenfranchisement laws, even though the Fifteenth Amendment to the U.S. Constitution specifically provides that “the right of citizens of the United States to vote shall not be denied … on account of race, color, or previous condition of servitude.” Formally race-neutral devices were adopted to achieve the goal of an all-white electorate without violating the terms of the Fifteenth Amendment. The devices worked quite well. Because African Americans were poor, they frequently could not pay poll taxes. And because they had been denied access to education, they could not pass literacy tests. Grandfather clauses allowed whites to vote even if they couldn’t meet the requirements, as long as their ancestors had been able to vote. Finally, because blacks were disproportionately charged with felonies—in fact, some crimes were specifically defined as felonies with the goal of eliminating blacks from the electorate—felon disenfranchisement laws effectively suppressed the black vote as well.31 Following the collapse of Jim Crow, all of the race-neutral devices for excluding blacks from the electorate were eliminated through litigation or legislation, except felon disenfranchisement laws. Some courts have found that these laws have “lost their discriminatory taint” because they have been amended since the collapse of...

It is worthy of note, however, that the exclusion of black voters from polling booths is not the only way in which black political power has been suppressed. Another dimension of disenfranchisement echoes not so much Jim Crow as slavery. Under the usual-residence rule, the Census Bureau counts imprisoned individuals as residents of the jurisdiction in which they are incarcerated. Because most new prison construction occurs in predominately white, rural areas, these communities benefit from inflated population totals at the expense of the urban, overwhelmingly minority communities from which people in prison frequently come.