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

by Michelle Alexander

Exclusion from juries. Another clear parallel between mass incarceration and Jim Crow is the systematic exclusion of blacks from juries. One hallmark of the Jim Crow era was all-white juries trying black defendants in the South. Although the exclusion of jurors on the basis of race has been illegal since 1880, as a practical matter, the removal of prospective black jurors through race-based peremptory strikes was sanctioned by the Supreme Court until 1985, when the Court ruled in Batson v. Kentucky that racially biased strikes violate the equal protection clause of the Fourteenth Amendment.36 Today defendants face a situation highly similar to the one they faced a century ago. As described in chapter 3, a 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.

Closing the courthouse doors. The parallels between mass incarceration and Jim Crow extend all the way to the U.S. Supreme Court. Over the years, the Supreme Court has followed a fairly consistent pattern in responding to racial caste systems, first protecting them and then, after dramatic shifts in the political and social climate, dismantling these systems of control and some of their vestiges. In Dred Scott v. Sanford, the Supreme Court immunized the institution of slavery from legal challenge on the grounds that African Americans were not citizens, and in Plessy v. Ferguson, the Court established the doctrine of “separate but equal”—a legal fiction that protected the Jim Crow system from judicial scrutiny for racial bias. Currently, McCleskey v. Kemp and its progeny serve much the same function as Dred Scott and Plessy. In McCleskey, the Supreme Court demonstrated that it is once again in protection mode—firmly committed to the prevailing system of control. As chapter 3 demonstrated, the Court has 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. Mass incarceration is now offlimits to challenges on the grounds of racial bias, much as its predecessors were in their time. The new racial caste system operates unimpeded by the Fourteenth Amendment and federal civil rights legislation—laws designed to topple earlier systems of control.

Racial segregation. Although the parallels listed above should be enough to give anyone pause, there are a number of other, less obvious, similarities between mass incarceration and Jim Crow that have not been explored in earlier chapters. The creation and maintenance of racial segregation is one example. As we know, Jim Crow laws mandated residential segregation, and blacks were relegated to the worst parts of town. Roads literally stopped at the border of many black neighborhoods, shifting from pavement to dirt. Water, sewer systems, and other public services that supported the white areas of town frequently did not extend to the black areas. The extreme poverty that plagued blacks due to their legally sanctioned inferior status was largely invisible to whites—so long as whites remained in their own neighborhoods, which they were inclined to do. Racial segregation rendered black experience largely invisible to whites, making it easier for whites to maintain racial stereotypes about black values and culture. It also made it easier to deny or ignore their suffering. Mass incarceration functions similarly. It achieves racial segregation by segregating people in prison—the majority of whom are black and brown—from mainstream society. They are kept behind bars, typically more than a hundred miles from home.40 Even prisons—the actual buildings—are a rare sight for many Americans, as they are often located far from population centers. Although rural counties contain only 20 per...

Symbolic production of race. Arguably the most important parallel between mass incarceration and Jim Crow is that both have served to define the meaning and significance of race in America. Indeed, a primary function of any racial caste system is to define the meaning of race in its time. Slavery defined what it meant to be black (a slave), and Jim Crow defined what it meant to be black (a second-class citizen). Today mass incarceration defines the meaning of blackness in America: black people, especially black men, are criminals. That is what it means to be black. The temptation is to insist that black men “choose” to be criminals; the system does not make them criminals, at least not in the way that slavery made blacks slaves or Jim Crow made them second-class citizens. The myth of choice here is seductive, but it should be resisted. African Americans are not significantly more likely to use or sell prohibited drugs than whites, but they are made criminals at drastically higher rates for precisely the same conduct.

Described below are a number of the other important differences between Jim Crow and mass incarceration.

Absence of racial hostility. First, let’s consider the absence of overt racial hostility among politicians who support harsh drug laws and the law enforcement officials charged with enforcing them. The absence of overt racial hostility is a significant difference from Jim Crow, but it can be exaggerated. Mass incarceration, like Jim Crow, was born of racial opportunism—an effort by white elites to exploit the racial hostilities, resentments, and insecurities of poor and working-class whites.

White victims of racial caste. We now turn to another important difference between mass incarceration and Jim Crow: the direct harm to whites caused by the current caste system. Whites never had to sit at the back of the bus during Jim Crow, but today a white man may find himself in prison for a drug offense, sharing a cell with a black man. The direct harm caused to whites caused by mass incarceration seems to distinguish it from Jim Crow; yet, like many of the other differences, this one requires some qualification. Some whites were directly harmed by Jim Crow. For example, a white woman who fell in love with a black man and hoped to spend the rest of her life with him was directly harmed by anti-miscegenation laws. The laws were intended for her benefit—to protect her from the corrupting influence of the black man and the “tragedy” of mulatto children—but she was directly harmed nonetheless. Still, it seems obvious that mass incarceration directly harms far more whites than Jim Crow ever did. For some, this fact alone may be reason enough to reject the analogy. An “interracial racial caste system” may seem like an oxymoron. What kind of racial caste system includes white people within its control? The answer: a racial caste system in the age of colorblindness. If 100 percent of the people arrested and convicted for drug offenses were African American, the situation would provoke outrage among the majority of Americans who consider themselves nonracist and who know very ...

Black support for “get tough” policies. Yet another notable difference between Jim Crow and mass incarceration is that many African Americans seem to support the current system of control, while most believe the same could not be said of Jim Crow.

Our nation declared a war on people trapped in racially segregated ghettos—just at the moment their economies had collapsed—rather than providing community investment, quality education, and job training when work disappeared.

The awkward silence of the civil rights community, however, is more problematic. If something akin to a racial caste system truly exists, why has the civil rights community been so slow to acknowledge it? Indeed, how could civil rights organizations, some of which are larger and better funded than at any point in American history, have allowed this human rights nightmare to occur on their watch? The answer is not that civil rights advocates are indifferent to racial bias in the criminal justice system. To the contrary, we care quite a lot. Nor have we been entirely ignorant of the realities of the new caste system. In recent years, civil rights advocates have launched important reform efforts, most notably the campaigns challenging felon disenfranchisement laws, crack-sentencing policies, and racial profiling by law enforcement. Civil rights groups have also developed litigation and important coalitions related to the school-to-prison pipeline, inadequate indigent defense, and juvenile justice reform, to name a few. Despite these important efforts, what is most striking about the civil rights community’s response to the mass incarceration of people of color is the relative quiet. Given the magnitude—the sheer scale—of the New Jim Crow, one would expect that the War on Drugs would be the top priority of every civil rights organization in the country.

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. One day, civil rights organizations may be embarrassed by how long it took them to move out of denial and do the hard work necessary to end mass incarceration.

Civil rights advocates pursued their own agendas as unelected representatives of communities defined by race and displayed considerable skill navigating courtrooms and halls of power across America. The law became what the lawyers and lobbyists said it was, with little or no input from the people whose fate hung in the balance.

Not surprisingly, as civil rights advocates converted a grassroots movement into a legal campaign, and as civil rights leaders became political insiders, many civil rights organizations became top-heavy with lawyers. This development enhanced their ability to wage legal battles but impeded their ability to acknowledge or respond to the emergence of a new caste system. 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.

The time-tested strategy of using those who epitomize moral virtue as symbols in racial justice campaigns is far more difficult to employ in efforts to reform the criminal justice system. Most people who are caught up in the criminal justice system have less than flawless backgrounds.

One reason so many people have a false impression of the economic well-being of African Americans, as a group, is that poverty and unemployment statistics do not include people who are behind bars. People in prison are literally erased from the nation’s economic picture, leading standard estimates to underestimate the true jobless rate by as much as 24 percentage points for less-educated black men.11 Young African American men were the only group to experience a steep increase in joblessness between 1980 and 2000, a development directly traceable to the increase in the penal population. During the much heralded economic boom of the 1990s, the true jobless rate among noncollege black men was a staggering 42 percent (65 percent among black male dropouts).

If four out of five people were released from prisons, far more than a million people could lose their jobs. There is also the private-sector investment to consider. Prisons are big business and have become deeply entrenched in America’s economic and political system. Rich and powerful people, including former vice president Dick Cheney, have invested millions in private prisons.

Consider also the lengthy to-do list for reformers. If we become serious about dismantling the system of mass incarceration, we must end the War on Drugs. There is no way around it. The drug war helped to birth this system of mass incarceration and create a vast, new under-caste. There is no path to liberation for communities of color that includes this ongoing war. Ending the drug war is no simple task, however. It cannot be accomplished through a landmark court decision, an executive order, or single stroke of the presidential pen. Since 1982, the war has raged like a forest fire set with a few matches and a gallon of gasoline. What began as an audacious federal program has spread to every state in the nation and nearly every city. It has infected law enforcement activities on roads, sidewalks, highways, train stations, airports, and the nation’s border. The war has effectively shredded portions of the U.S. Constitution—eliminating Fourth Amendment protections once deemed inviolate—and it has militarized policing practices in inner cities across America. Racially targeted drug-law enforcement practices taken together with laws that specifically discriminate against people with drug convictions in employment, housing, and public benefits have relegated the majority of black men in urban areas across the United States to a permanent second-class status. If we hope to end this system of control, we cannot be satisfied with a handful of reforms. All of the financial incentiv...

It is not uncommon, however, to hear people claim that the mere fact that we have the lowest crime rates, at the same time that we have the highest incarceration rates, is all the proof needed that this system works well to control crime. But if you believe this system effectively controls crime, consider this: standard estimates of the amount of crime reduction that can be attributable to mass incarceration range from 3 to 25 percent.27 Some scholars believe we have long since passed a tipping point where the declining marginal return on imprisonment has dipped below zero. Imprisonment, they say, now creates far more crime than it prevents, by ripping apart fragile social networks, destroying families, and creating a permanent class of unemployables.

Racial justice advocates should consider, with a degree of candor that has not yet been evident, whether affirmative action—as it has been framed and defended during the past thirty years—has functioned more like a racial bribe than a tool of racial justice. One might wonder, what does affirmative action have to do with mass incarceration? Well, perhaps the two are linked more than we realize. We should ask ourselves whether efforts to achieve “cosmetic” racial diversity—that is, reform efforts that make institutions look good on the surface without the needed structural changes—have actually helped to facilitate the emergence of mass incarceration and interfered with the development of a more compassionate race consciousness. In earlier chapters, we have seen that throughout our nation’s history, poor and working-class whites have been bought off by racial bribes. The question posed here is whether affirmative action has functioned similarly, offering relatively meager material advantages but significant psychological benefits to people of color, in exchange for the abandonment of a more radical movement that promised to alter the nation’s economic and social structure. To be clear: this is not an argument that affirmative action policies conflict with King’s dream that we might one day be “judged by the content of our character, not the color of our skin.” King himself would have almost certainly endorsed affirmative action as a remedy, at least under some circumstances....

The claim is that racial justice advocates should reconsider the traditional approach to affirmative action because (a) it has helped to render a new caste system largely invisible; (b) it has helped to perpetuate the myth that anyone can make it if they try; (c) it has encouraged the embrace of a “trickle-down theory of racial justice”; (d) it has greatly facilitated the divide-and-conquer tactics that gave rise to mass incarceration; and (e) it has inspired such polarization and media attention that the general public now (wrongly) assumes that affirmative action is the main battlefront in U.S. race relations. It may not be easy for the civil rights community to have a candid conversation about any of this. Civil rights organizations are populated with beneficiaries of affirmative action (like myself) and their friends and allies. Ending affirmative action arouses fears of annihilation. The reality that so many of us would disappear overnight from colleges and universities nationwide if affirmative action were banned, and that our children and grandchildren might not follow in our footsteps, creates a kind of panic that is difficult to describe. It may be analogous, in some respects, to the panic once experienced by poor and working-class whites faced with desegregation—the fear of a sudden demotion in the nation’s racial hierarchy.

Affirmative action, particularly when it is justified on the grounds of diversity rather than equity (or remedy), masks the severity of racial inequality in America, leading to greatly exaggerated claims of racial progress and overly optimistic assessments of the future for African Americans. Seeing black people graduate from Harvard and Yale and become CEOs or corporate lawyers—not to mention president of the United States—causes us all to marvel at what a long way we have come. As recent data shows, however, much of black progress is a myth. Although some African Americans are doing very well—enrolling in universities and graduate schools at record rates thanks to affirmative action—as a group, in many respects African Americans are doing no better than they were when Martin Luther King Jr. was assassinated and riots swept inner cities across America. The child poverty rate is actually higher today than it was in 1968.41 Unemployment rates in black communities rival those in Third World countries. And that is with affirmative action!

to what extent has affirmative action helped us remain blind to, and in denial about, the existence of a racial undercaste? And to what extent have the battles over affirmative action distracted us and diverted crucial resources and energy away from dismantling the structures of racial inequality?

Civil rights activists have created a national movement to save affirmative action, complete with the marches, organizing, and media campaigns, as well as incessant strategy meetings, conferences, and litigation. Where is the movement to end mass incarceration? For that matter, where is the movement for educational equity? Part of the answer is that it is far easier to create a movement when there is a sense of being under attack. It is also easier when a single policy is at issue, rather than something as enormous (and seemingly intractable) as educational inequity or mass incarceration.

There is another, more sinister consequence of affirmative action: the carefully engineered appearance of great racial progress strengthens the “colorblind” public consensus that personal and cultural traits, not structural arrangements, are largely responsible for the fact that the majority of young black men in urban areas across the United States are currently under the control of the criminal justice system or branded as felons for life. In other words, affirmative action helps to make the emergence of a new racial caste system seem implausible. It creates an environment in which it is reasonable to ask, how can something akin to a racial caste system exist when people like Condoleezza Rice, Colin Powell, and Barack Obama are capable of rising from next to nothing to the pinnacles of wealth and power? How could a caste system exist, in view of the black middle class?

far from undermining the current system of control, the new caste system depends, in no small part, on black exceptionalism.

In short, mass incarceration is predicated on the notion that an extraordinary number of African Americans (but not all) have freely chosen a life of crime and thus belong behind bars and should be stripped of basic rights of citizenship A belief that all blacks belong in jail would be incompatible with the social consensus that we have “moved beyond” race and that race is no longer relevant. But a widespread belief that a majority of black and brown men unfortunately belong in jail is compatible with the new American creed, provided that their imprisonment can be interpreted as their own fault. If the prison label imposed on them can be blamed on their culture, poor work ethic, or even their families, then society is absolved of responsibility to do anything about their condition.

This is where black exceptionalism comes in. 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.

Viewed from this perspective, affirmative action no longer appears entirely progressive. So long as some readily identifiable African Americans are doing well, the system is largely immunized from racial critique. People like Barack Obama who are truly exceptional by any standards, along with others who have been granted exceptional opportunities, legitimate a system that remains fraught with racial bias—especially when they fail to challenge, or even acknowledge, the prevailing racial order.

diversity-driven affirmative action programs seem to be the epitome of racial justice purchased on the cheap. They create the appearance of racial equity without the reality and do so at no great cost, without fundamentally altering any of the structures that create racial inequality in the first place.

When meaningful change fails to materialize following the achievement of superficial diversity, those who remain locked out can become extremely discouraged and demoralized, resulting in cynicism and resignation.

People of color are often reluctant to challenge institutions led by people who look like them, as they feel a personal stake in the individual’s success. After centuries of being denied access to leadership positions in key social institutions, people of color quite understandably are hesitant to create circumstances that could trigger the downfall of “one of their own.”

Joe Biden, one of the Senate’s most strident drug warriors,

a growing number of formerly incarcerated men and women have been organizing in major cities across the United States, providing assistance to those newly released from prison and engaging in grassroots political activism in pursuit of basic civil rights. One such organization, based in Oakland, California, is named All of Us or None. The name explicitly challenges a politics that affords inclusion and acceptance for a few but guarantees exclusion for many. In spirit, it asserts solidarity with the “least of these among us.” Diversity-driven affirmative action, as described and implemented today, sends a different message. The message is that “some of us” will gain inclusion. As a policy, it is blind to those who are beyond its reach, the colored faces at the bottom of the well. One policy alone can’t save the world, the skeptic might respond. True enough. But what if affirmative action, as it has been framed and debated, does more harm than good, viewed from the perspective of “all of us”?

Whites should demonstrate that their silence in the drug war cannot be bought by tacit assurances that their sons and daughters will not be rounded up en masse and locked away. Whites should prove their commitment to dismantling not only mass incarceration, but all of the structures of racial inequality that guarantee for whites the resilience of white privilege.

Rather than challenging the basic structure of society and doing the hard work of movement building—the work to which King was still committed at the end of his life—we have been tempted too often by the opportunity for people of color to be included within the political and economic structure as-is, even if it means alienating those who are necessary allies. We have allowed ourselves to be willfully blind to the emergence of a new caste system—a system of social excommunication that has denied millions of African Americans basic human dignity.

Those of us who hope to be their allies should not be surprised, if and when this day comes, that when those who have been locked up and locked out finally have the chance to speak and truly be heard, what we hear is rage. The rage may frighten us; it may remind us of riots, uprisings, and buildings aflame. We may be tempted to control it, or douse it with buckets of doubt, dismay, and disbelief. But we should do no such thing.