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

by Michelle Alexander

Obama was the first sitting president to visit a federal corrections facility, the first to oversee a drop in the federal prison population in more than thirty years, and he granted clemency to nearly two thousand people behind bars—the highest total for any president since President Harry Truman. His administration enacted significant policy changes, including, among others, legislation reducing sentencing disparities involving crack and powder cocaine, a temporary ban on federal contracts with private prisons, and limitations on the transfer of military equipment to local police departments.

Most troubling, the modest criminal justice reforms that were achieved during the Obama administration coincided with the expansion of the system of mass deportation. At the same time that the administration was phasing out federal contracts for private prisons, it was making enormous investments in private detention centers for immigrants, including the granting of a $1 billion contract to Corrections Corporation of America, the nation’s largest prison company (recently renamed Core Civic), to build a massive detention facility for women and children seeking asylum from Central America.

Although men continue to comprise 90 percent of the prison population, women’s incarceration has increased 800 percent over the past thirty years, and the incarceration rate for black women is double that of white women. Today, women are more likely than men to be imprisoned for drug-related offenses—a particularly troubling reality given that 62 percent of women in state prisons have minor children, many of whom are forced into foster care or left with relatives who scarcely have the means to care for them.

The separation of families is now widely understood as a human rights crisis at the border, yet comparatively little attention has been paid to the destruction of black families in the era of mass incarceration. One in four women in the United States has a loved one behind bars, and the figure is nearly one in two for black women.

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 communities safe. In fact, our system is primarily concerned with the perpetual control and marginalization of the dispossessed; it is not designed to respond meaningfully to the harms of violence—

The term mass incarceration refers not only to the criminal justice system but also to the web of laws, rules, policies, and customs that control those labeled criminals both in and outside of prison. Once released, former prisoners enter a hidden underworld of legalized discrimination and permanent social exclusion. They are members of America’s new undercaste.

The United States has a staggering 2.3 million people in prison—a higher rate of incarceration than any country in the world—but it also has another 4.5 million people under state control outside of prisons, on probation or parole. More than 70 million Americans—over 20 percent of the entire U.S. population, overwhelmingly poor and disproportionately people of color—now have criminal records that authorize legal discrimination for life.

The Reagan administration hired staff to publicize the emergence of crack cocaine in 1985 as part of a strategic effort to build public and legislative support for the war.3 The media campaign was an extraordinary success. Almost overnight, the media was saturated with images of black “crack whores,” “crack dealers,” and “crack babies”—images that seemed to confirm the worst negative racial stereotypes about impoverished inner-city residents. The media bonanza surrounding the “new demon drug” helped to catapult the War on Drugs from an ambitious federal policy to an actual war.

The CIA admitted in 1998 that guerrilla armies it actively supported in Nicaragua were smuggling illegal drugs into the United States—drugs that were making their way onto the streets of inner-city black neighborhoods in the form of crack cocaine. The CIA also admitted that, in the midst of the War on Drugs, it blocked law enforcement efforts to investigate illegal drug networks that were helping to fund its covert war in Nicaragua.

No other country in the world imprisons so many of its racial or ethnic minorities. The United States imprisons a larger percentage of its black population than South Africa did at the height of apartheid.

“You are kept apart that you may be separately fleeced of your earnings. You are made to hate each other because upon that hatred is rested the keystone of the arch of financial despotism that enslaves you both. You are deceived and blinded that you may not see how this race antagonism perpetuates a monetary system which beggars both.”

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. The laws were, in effect, another racial bribe.

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.

Negroes stood only a “brief moment in the sun.” Conservative whites began, once again, to search for a new racial order that would conform to the needs and constraints of the time. This process took place with the understanding that whatever the new order would be, it would have to be formally race-neutral—it could not involve explicit or clearly intentional race discrimination.

For more than a decade—from the mid-1950s until the late 1960s—conservatives systematically and strategically linked opposition to civil rights legislation to calls for law and order, arguing that Martin Luther King Jr.’s philosophy of civil disobedience was a leading cause of crime. Civil rights protests were frequently depicted as criminal rather than political in nature, and federal courts were accused of excessive “lenience” toward lawlessness, thereby contributing to the spread of crime.

Black support for harsh responses to urban crime—support born of desperation and legitimate concern over the unraveling of basic security in inner-city communities—helped provide political cover for conservative politicians who saw an opening to turn back the clock on racial progress in the United States. Conservatives could point to black support for highly punitive approaches to dealing with the problems of the urban poor as “proof” that race had nothing to do with their “law and order” agenda.

As the rules of acceptable discourse changed, however, segregationists distanced themselves from an explicitly racist agenda. They developed instead the racially sanitized rhetoric of “cracking down on crime”—rhetoric that is now used freely by politicians of every stripe.

Thus in the late 1960s and early 1970s, two schools of thought were offered to the general public regarding race, poverty, and the social order. Conservatives argued that poverty was caused not by structural factors related to race and class but rather by culture—particularly black culture. 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 it.

Liberals, by contrast, insisted that social reforms such as the War on Poverty and civil rights legislation would get at the “root causes” of criminal behavior and stressed the social conditions that predictably generate crime.

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

This reality made it possible for conservatives to characterize the “liberal Democratic establishment” as being out of touch with ordinary working people—thus resolving one of the central problems facing conservatives: how to persuade poor and working-class voters to join in alliance with corporate interests and the conservative elite.

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.”

To great effect, Reagan echoed white frustration in race-neutral terms through implicit racial appeals. His “colorblind” rhetoric on crime, welfare, taxes, and states’ rights was clearly understood by white (and black) voters as having a racial dimension, though claims to that effect were impossible to prove. The absence of explicitly racist rhetoric afforded the racial nature of his coded appeals a certain plausible deniability.

Crack hit the streets in 1985, a few years after Reagan’s drug war was announced, resulting in a spike in violence as drug markets struggled to stabilize, and the anger and frustration associated with joblessness boiled. Joblessness and crack swept inner cities precisely at the moment that a fierce backlash against the Civil Rights Movement was manifesting itself through the War on Drugs.

Thousands of stories about the crack crisis flooded the airwaves and newsstands, and the stories had a clear racial subtext. The articles typically featured black “crack whores,” “crack babies,” and “gangbangers,” reinforcing already prevalent racial stereotypes of black women as irresponsible, selfish “welfare queens,” and black men as “predators”—part of an inferior and criminal subculture.86

Beginning in the 1970s, researchers found that racial attitudes—not crime rates or likelihood of victimization—are an important determinant of white support for “get tough on crime” and antiwelfare measures.91 Among whites, those expressing the highest degree of concern about crime also tend to oppose racial reform, and their punitive attitudes toward crime are largely unrelated to their likelihood of victimization.

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.93 The War on Drugs, cloaked in race-neutral language, offered whites opposed to racial reform a unique opportunity to express their hostility toward blacks and black progress, without being exposed to the charge of racism.

Shortly thereafter, a New York Times/CBS News Poll reported that 64 percent of those polled—the highest percentage ever recorded—now thought that drugs were the most significant problem in the United States.95 This surge of public concern did not correspond to a dramatic shift in illegal drug activity, but instead was the product of a carefully orchestrated political campaign. The level of public concern about crime and drugs was only weakly correlated with actual crime rates, but highly correlated with political initiatives, campaigns, and partisan appeals.

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.2 Drug arrests have tripled since 1980. As a result, more than 31 million people have been arrested for drug offenses since the drug war began.3 To put the matter in perspective, consider this: there are more people in prisons and jails today just for drug offenses than were incarcerated for all reasons in 1980.

Before we begin our tour of the drug war, it is worthwhile to get a couple of myths out of the way. The first is that the war is aimed at ridding the nation of drug “kingpins” or big-time dealers. Nothing could be further from the truth. The vast majority of those arrested are charged with relatively minor crimes.

The second myth is that the drug war is principally concerned with dangerous drugs. 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.

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.

Allowing the police to use minor traffic violations as a pretext for baseless drug investigations would permit them to single out anyone for a drug investigation without any evidence of illegal drug activity whatsoever. That kind of arbitrary police conduct is precisely what the Fourth Amendment was intended to prohibit.

The rate of increase in the use of SWAT teams has been astonishing. In 1972, there were just a few hundred paramilitary drug raids per year in the United States. By the early 1980s, there were three thousand annual SWAT deployments, by 1996 there were thirty thousand, and by 2001 there were forty thousand.41 The escalation of military force was quite dramatic in cities throughout the United States. In the city of Minneapolis, Minnesota, for example, its SWAT team was deployed on no-knock warrants thirty-five times in 1986, but in 1996 that same team was deployed for drug raids more than seven hundred times.

The transformation from “community policing” to “military policing,” began in 1981, when President Reagan persuaded Congress to pass the Military Cooperation with Law Enforcement Act, which encouraged the military to give local, state, and federal police access to military bases, intelligence, research, weaponry, and other equipment for drug interdiction.

Prosecutors admit that they routinely charge people with crimes for which they technically have probable cause but which they seriously doubt they could ever win in court.71 They “load up” defendants with charges that carry extremely harsh sentences in order to force them to plead guilty to lesser offenses and—here’s the kicker—to obtain testimony for a related case. Harsh sentencing laws encourage people to snitch.

About as many people were returned to prison for parole violations in 2000 as were admitted to prison in 1980 for all reasons.94 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.

The truth, however, is that rates and patterns of drug crime do not explain the glaring racial disparities in our criminal justice system. 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.

The racial bias inherent in the drug war is a major reason that 1 in every 14 black men was behind bars in 2006, compared with 1 in 106 white men.20 For young black men, the statistics are even worse. One in 9 black men between the ages of twenty and thirty-five was behind bars in 2006, and far more were under some form of penal control—such as probation or parole.21 These gross racial disparities simply cannot be explained by rates of illegal drug activity among African Americans.

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.

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.

African Americans constituted only 15 percent of current drug users in 1995, and they constitute roughly the same percentage today. Whites constituted the vast majority of drug users then (and now), but almost no one pictured a white person when asked to imagine what a drug user looks like. The same group of respondents also perceived the typical drug trafficker as black.

Most striking, perhaps, is the overwhelming evidence that implicit bias measures are disassociated from explicit bias measures.43 In other words, the fact that you may honestly believe that you are not biased against African Americans, and that you may even have black friends or relatives, does not mean that you are free from unconscious bias.

Everyone internalizes racism

Viewed as a whole, the relevant research by cognitive and social psychologists to date suggests that racial bias in the drug war was inevitable, once a public consensus was constructed by political and media elites that drug crime is black and brown. Once blackness and crime, especially drug crime, became conflated in the public consciousness, the “criminalblackman,” as termed by legal scholar Kathryn Russell, would inevitably become the primary target of law enforcement.

University of Washington decided to take the defenses of the drug war seriously by subjecting the arguments to empirical testing in a major study of drug-law enforcement in a racially mixed city—Seattle.86 The study found that, contrary to the prevailing “common sense,” the high arrest rates of African Americans in drug-law enforcement could not be explained by rates of offending; nor could they be explained by other standard excuses, such as the ease and efficiency of policing open-air drug markets, citizen complaints, crime rates, or drug-related violence. The study also debunked the assumption that white drug dealers deal indoors, making their criminal activity more difficult to detect.

Seattle residents were far more likely to report suspected narcotics activities in residences—not outdoors—but police devoted their resources to open-air drug markets and to the one precinct that was least likely to be identified as the site of suspected drug activity in citizen complaints. In fact, although hundreds of outdoor drug transactions were recorded in predominantly white areas of Seattle, police concentrated their drug enforcement efforts in one downtown drug market where the frequency of drug transactions was much lower.

Forty-eight states and the District of Columbia prohibit people from voting while incarcerated for a felony offense. Only two states—Maine and Vermont—permit people to vote while serving sentences behind bars. The vast majority of states continue to withhold the right to vote when people are released on parole. 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.

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

These studies indicate that 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 type of phenomenon has been described in the psychological literature as pluralistic ignorance, in which people misjudge the norm. One example is found in studies of college freshman who overestimate the drinking among other freshman.76 When it comes to families of people in prison, however, their underestimation of the extent of incarceration in their communities exacerbates their sense of isolation by making the imprisonment of their family members seem more abnormal than it is.