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

by Michelle Alexander

In the years that followed, Presidents George Bush and Bill Clinton enthusiastically embraced the drug war and increased the transfer of military equipment, technology, and training to local law enforcement, contingent, of course, on the willingness of agencies to prioritize drug-law enforcement and concentrate resources on arrests for illegal drugs. The incentives program worked. Drug arrests skyrocketed as SWAT teams swept through urban housing projects, highway patrol agencies organized drug interdiction units on the freeways, and stop-and-frisk programs were set loose on the streets. 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.

The war has become institutionalized. It is no longer a special program or politicized project; it is simply the way things are done.

“There’s a real disconnect in this country between what people perceive is the state of indigent defense and what it is. I attribute that to shows like Law & Order, where the defendant says, ‘I want a lawyer,’ and all of a sudden Legal Aid appears in the cell. That’s what people think.”

Merely reducing prison terms does not have a major impact on the majority of people in the system. It is the badge of inferiority—the felony record—that relegates people for their entire lives to second-class status.

No wonder, then, that most people labeled felons are swept back into prisons not long after their release. According to a Bureau of Justice Statistics study, about 30 percent of those released from prison in its sample were rearrested within six months of release.90 Within three years, nearly 68 percent were rearrested at least once for a new offense.91 Only a small minority are rearrested for violent crimes; the vast majority are rearrested for property offenses, drug offenses, and offenses against the public order.92 For those released on probation or parole, the risks are especially high. They are subject to regular surveillance and monitoring by the police and may be stopped and searched (with or without their consent) for any reason or no reason at all. As a result, they are far more likely to be arrested (again) than those whose behavior is not subject to constant scrutiny by law enforcement.

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.

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.

The brutal stories described above are not isolated incidents, nor are the racial identities of Erma Faye Stewart and Clifford Runoalds random or accidental. In every state across our nation, African Americans—particularly in the poorest neighborhoods—are subjected to tactics and practices that would result in public outrage and scandal if committed in middle-class white neighborhoods.

In the drug war, the enemy is racially defined. The law enforcement methods described in chapter 2 have been employed almost exclusively in poor communities of color, resulting in jaw-dropping numbers of African Americans and Latinos filling our nation’s prisons and jails every year. We are told by drug warriors that the enemy in this war is a thing—drugs—not a group of people, but the facts prove otherwise.

Human Rights Watch reported in 2000 that, in seven states, African Americans constitute 80 to 90 percent of all those sent to prison on drug charges.3 In at least fifteen states, blacks are admitted to prison on drug charges at a rate from twenty to fifty-seven times greater than that of white men.4 In fact, nationwide, the rate of incarceration for African Americans convicted of drug offenses dwarfs the rate of whites. When the War on Drugs gained full steam in the mid-1980s, prison admissions for African Americans skyrocketed, near...

People of all races use and sell illegal drugs at remarkably similar rates.10 If there are significant differences in the surveys to be found, they frequently suggest that whites, particularly white youth, are more likely to engage in illegal drug dealing than people of color.11 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.

government data revealed that blacks were no more likely to be guilty of drug crimes than whites and that white youth were actually the most likely of any racial or ethnic group to be guilty of illegal drug possession and sales.

Studies consistently indicate that drug markets, like American society generally, reflect our nation’s racial and socioeconomic boundaries. Whites tend to sell to whites; blacks to blacks.

This dramatically changed racial climate has led defenders of mass incarceration to insist that our criminal justice system, whatever its past sins, is now largely fair and nondiscriminatory. They point to violent crime rates in the African American community as a justification for the staggering number of black men who find themselves behind bars. Black men, they say, have much higher rates of violent crime; that’s why so many of them are locked up. Typically, this is where the discussion ends. The problem with this abbreviated analysis is that 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.

The most common offense for which people are placed on probation or parole is a drug offense.28 Even if the analysis is limited to felonies—thus excluding extremely minor crimes and misdemeanors—nonviolent offenses predominate.

The lie that “most people sent to prison are violent offenders” is dangerous because it perpetuates the false notion that our system of mass incarceration is primarily concerned with violence and that it is well designed to keep people safe. In fact, the system is primarily concerned with the perpetual control and marginalization of the dispossessed.

If we truly want to end violence in our communities, we must come to understand, as discussed in the final chapter, the ways in which mass incarceration increases—not decreases—violence and multiplies its harms. But at the same time, we ought not be misled by those who insist that violent crime has driven the rise of this unprecedented system of racial and social control. The uncomfortable reality is that a literal war has been waged on our most vulnerable communities, and convictions for relatively minor, nonviolent offenses have propelled mass incarceration.

It is the genius of the new system of control that it can always be defended on nonracial grounds, given the rarity of a noose or a racial slur in connection with any particular criminal case.

The central question, then, is 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—

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?

Early in the 1980s, the typical cocaine-related story focused on white recreational users who snorted the drug in its powder form. These stories generally relied on news sources associated with the drug treatment industry, such as rehabilitation clinics, and emphasized the possibility of recovery. By 1985, however, as the War on Drugs moved into high gear, this frame was supplanted by a new “siege paradigm,” in which transgressors were poor, nonwhite users and dealers of crack cocaine. Law enforcement officials assumed the role of drug “experts,” emphasizing the need for law and order responses—a crackdown on those associated with the drug. These findings are consistent with numerous other studies, including a study of network television news from 1990 and 1991, which found that a predictable “us against them” frame was used in the news stories, with “us” being white, suburban America, and “them” being black Americans and a few corrupted whites.34 The media bonanza inspired by the administration’s campaign solidified in the public imagination the image of the black drug criminal.

Decades of cognitive bias research demonstrates that both unconscious and conscious biases lead to discriminatory actions, even when an individual does not want to discriminate.39 The quotation, commonly attributed to Nietzsche, that “there is no immaculate perception,” perfectly captures how cognitive schemas—thought structures—influence what we notice and how the things we notice get interpreted.40 Studies have shown that racial schemas operate not only as part of conscious, rational deliberations, but also automatically—without conscious awareness or intent.

Much racial bias, though, would operate unconsciously and automatically—even among law enforcement officials genuinely committed to equal treatment under the law. Whether or not one believes racial discrimination in the drug war was inevitable, it should have been glaringly obvious in the 1980s and 1990s that an extraordinarily high risk of racial bias in the administration of criminal justice was present, given the way in which all crime had been framed in the media and in political discourse.

Tactics that would be political suicide in an upscale white suburb are not even newsworthy in poor black and brown communities. So long as mass drug arrests are concentrated in impoverished urban areas, police chiefs have little reason to fear a political backlash, no matter how aggressive and warlike the efforts may be. And so long as the number of drug arrests increases or at least remains high, federal dollars continue to flow in and fill the department’s coffers.

Although the NYPD frequently attempts to justify stop-and-frisk operations in poor communities of color on the grounds that such tactics are necessary to get guns off the streets, less than 1 percent of stops (0.15 percent) resulted in guns being found, and guns and other contraband were seized less often in stops of African Americans and Latinos than of whites.

These routine encounters often serve as the gateway into the criminal justice system. The NYPD made 50,300 marijuana arrests in 2010 alone, mostly of young men of color. As one report noted, these marijuana arrests offer “training opportunities” for rookie police who can practice on ghetto kids while earning overtime.112 These arrests serve another purpose as well: they “are the most effective way for the NYPD to collect fingerprints, photographs and other information on young people not yet entered into the criminal databases.”

In Los Angeles, mass stops of young African American men and boys resulted in the creation of a database containing the names, addresses, and other biographical information of the overwhelming majority of young black men in the entire city. The LAPD justified its database as a tool for tracking gang or “gang-related” activity. However, the criterion for inclusion in the database is notoriously vague and discriminatory. Having a relative or friend in a gang and wearing baggy jeans is enough to put youth on what the ACLU calls a Black List.

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. These restrictions amount to a form of “civic death” and send the unequivocal message that “they” are no longer part of “us.” Once labeled a felon, the badge of inferiority remains with you for the rest of your life, relegating you to a permanent second-class status.

Collectively, these sanctions send the strong message that, now that you have been labeled, you are no longer wanted. You are no longer part of “us,” the deserving. Unable to drive, get a job, find housing, or even qualify for public benefits, many people with criminal records lose their children, their dignity, and eventually their freedom—landing back in jail after failing to play by rules that seem hopelessly stacked against them.

More than 650,000 people are released from prison each year, and for many, finding a new home appears next to impossible, not just in the short term, but for the rest of their lives.

Finding a job allows a person to establish a positive role in the community, develop a healthy self-image, and keep a distance from negative influences and opportunities for illegal behavior. Work is deemed so fundamental to human existence in many countries around the world that it is regarded as a basic human right. Deprivation of work, particularly among men, is strongly associated with depression and violence.

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.52 No other country in the world disenfranchises people who are released from prison in a manner even remotely resembling the United States.