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

by Michelle Alexander

The inevitable result is that the people who wind up in front of a judge are usually guilty of some crime. The parade of guilty people through America’s courtrooms gives the false impression to the public—as well as to judges—that when the police have a “hunch,” it makes sense to let them act on it.

The truth, however, is that most people stopped and searched in the War on Drugs are perfectly innocent of any crime. The police have received no training that enhances the likelihood they will spot the guilty people as they drive by and leave everyone else alone. To the contrary, tens of thousands of law enforcement officers have received training that guarantees precisely the opposite.

By 2000, the DEA had directly trained more than 25,000 officers in forty-eight states in Pipeline tactics and helped to develop training programs for countless municipal and state law enforcement agencies. In legal scholar Ricardo Bascuas’s words, “Operation Pipeline is exactly what the Framers meant to prohibit: a federally-run general search program that targets people without cause for suspicion, particularly those who belong to disfavored groups.”

One study found that up to 99 percent of traffic stops made by federally funded narcotics task forces result in no citation and that 98 percent of task-force searches during traffic stops are discretionary searches in which the officer searches the car with the driver’s verbal “consent” but has no other legal authority to do so.28

The resistance within law enforcement to the drug war created something of a dilemma for the Reagan administration. In order for the war to actually work—that is, in order for it to succeed in achieving its political goals—it was necessary to build a consensus among state and local law enforcement agencies that the drug war should be a top priority in their hometowns. The solution: cash. Huge cash grants were made to those law enforcement agencies that were willing to make drug-law enforcement a top priority.

The 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. That legislation carved a huge exception to the Posse Comitatus Act, the Civil War–era law prohibiting the use of the military for civilian policing.

the paramilitary units were often justified to city councils and skeptical citizens as essential to fight terrorism or deal with hostage situations, they were rarely deployed for those reasons but instead were sent to serve routine search warrants for drugs and make drug arrests. In fact, the Times reported that police departments had an extraordinary incentive to use their new equipment for drug enforcement: the extra federal funding the local police departments received was tied to antidrug policing.

The U.S. Sentencing Commission itself has noted that “the value of a mandatory minimum sentence lies not in its imposition, but in its value as a bargaining chip to be given away in return for the resource-saving plea from the defendant to a more leniently sanctioned charge.”

once swept inside the system, people are often denied attorneys or meaningful representation and pressured into plea bargains by the threat of unbelievably harsh sentences—sentences for minor drug crimes that are higher than many countries impose on convicted murderers.

Mandatory sentencing laws are frequently justified as necessary to keep “violent criminals” off the streets, yet those penalties are imposed most often against people who are guilty of nonviolent crimes and drug offenses. In fact, under the three strikes regime in California, a “repeat offender” could be someone who had only a single prior case decades ago, and one arrest can result in multiple strikes.

Even Supreme Court Justice Anthony Kennedy has condemned the harsh mandatory minimum sentences imposed on people convicted of drug offenses. He told attorneys gathered for the American Bar Association’s 2003 annual conference: “Our [prison] resources are misspent, our punishments too severe, our sentences too loaded.” He then added, “I can accept neither the necessity nor the wisdom of federal mandatory minimum sentences. In all too many cases, mandatory minimum sentences are unjust.”

Most people imagine that the explosion in the U.S. prison population during the past twenty-five years reflects changes in crime rates. Few would guess that our prison population leaped from approximately 350,000 to 2.3 million in such a short period of time due to changes in laws and policies, not changes in crime rates.

it has been changes in our laws—particularly the dramatic increases in the length of prison sentences—that has been responsible for the growth of our prison system, not increases in crime.

Once a person is labeled a felon, he or she is ushered into a parallel universe in which discrimination, stigma, and exclusion are perfectly legal, and privileges of citizenship such as voting and jury service are off-limits. It does not matter whether you have actually spent time in prison; your second-class citizenship begins the moment you are branded a felon.

This disturbing phenomenon of people cycling in and out of prison, trapped by their second-class status, has been described by Loïc Wacquant as a “closed circuit of perpetual marginality.”96 Hundreds of thousands of people are released from prison every year, only to find themselves locked out of the mainstream society and economy.

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.

Barry McCaffrey, former director of the White House Office of National Drug Control Policy, once remarked, if your child bought drugs, “it was from a student of their own race generally.”18 The notion that most illegal drug use and sales happens in the ghetto is pure fiction. Drug trafficking occurs there, but it occurs everywhere else in America as well. Nevertheless, black men have been admitted to state prison on drug charges at a rate that is more than thirteen times higher than that of white men.

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.

climb. Murder convictions tend to receive a tremendous amount of media attention, which feeds the public’s sense that violent crime is rampant and forever on the rise. But like violent crime in general, the murder rate cannot explain the growth of the penal apparatus. Homicide convictions account for a tiny fraction of the growth in the prison population.

the fact that half of a state’s prison population is comprised of people who are labeled violent offenders does not mean that half of the people sentenced to prison in that state have been convicted of violent crimes. This may seem counterintuitive at first, but if you pause to consider how the system actually operates this fact becomes obvious. People who are convicted of violent crimes tend to get longer prison sentences than those who commit nonviolent offenses. As a result, people who are classified as violent offenders comprise a much larger share of the prison population than they would if they had earlier release dates.

most people who are under state supervision and control are not in prison. Of the nearly 7.3 million people currently under correctional control, only 2.3 million are in prison or jail.

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. Georgia prosecutors seemed largely to blame for the disparity; they sought the death penalty in 70 percent of cases involving black defendants and white victims, but only 19 percent of cases involving white defendants and black victims.52

Immunizing prosecutors from claims of racial bias and failing to impose any meaningful check on the exercise of their discretion in charging, plea bargaining, transferring cases, and sentencing has created an environment in which conscious and unconscious biases are allowed to flourish.

The rules governing jury selection provide yet another illustration of the Court’s complete abdication of its responsibility to guarantee racial minorities equal treatment under the law.

the Supreme Court and lower federal courts have tolerated all but the most egregious examples of racial bias in jury selection.

The Court’s blind eye to race discrimination in the criminal justice system has been especially problematic in policing. Racial bias is most acute at the point of entry into the system for two reasons: discretion and authorization. Although prosecutors, as a group, have the greatest power in the criminal justice system, police have the greatest discretion—discretion that is amplified in drug-law enforcement. And unbeknownst to the general public, the Supreme Court has actually authorized race discrimination in policing, rather than adopting legal rules banning it.

at least 10 percent of Americans violate drug laws every year, and people of all races engage in illegal drug activity at similar rates. With such an extraordinarily large population to choose from, decisions must be made regarding who should be targeted and where the drug war should be waged.

From the outset, the drug war could have been waged primarily in overwhelmingly white suburbs or on college campuses.

As the authors put it: “[The Seattle Police Department’s] focus on black and Latino individuals and on the drug most strongly associated with ‘blackness’ suggest that law enforcement policies and practices are predicated on the assumption that the drug problem is, in fact, a black and Latino one, and that crack, the drug most strongly associated with urban blacks, is ‘the worst.’”88 This racialized cultural script about who and what constitutes the drug problem renders illegal drug activity by whites invisible. “White people,” the study’s authors observed, “are simply not perceived as drug offenders by Seattle police officers.”

The former New Jersey attorney general dubbed this phenomenon the “circular illogic of racial profiling.” Law enforcement officials, he explained, often point to the racial composition of our prisons and jails as a justification for targeting racial minorities, but the empirical evidence actually suggested the opposite conclusion was warranted. The disproportionate imprisonment of people of color was, in part, a product of racial profiling—not a justification for it.

The Supreme Court has now 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. The system of mass incarceration is now, for all practical purposes, thoroughly immunized from claims of racial bias.

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.

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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.

Black minstrelsy was the first large-scale opportunity for African Americans to enter show business. To some degree, then, black minstrelsy—as degrading as it was—represented success. It is possible that historians will one day look back on the images of black men in gangsta rap videos with a similar curiosity. Why would these young men, who are targets of a brutal drug war declared against them, put on a show—a spectacle—that romanticizes and glorifies their criminalization?

One theorist, Iris Marion Young, relying on a famous “birdcage” metaphor, explains it this way: if one thinks about racism by examining only one wire of the cage, or one form of disadvantage, it is difficult to understand how and why the bird is trapped. Only a large number of wires arranged in a specific way, and connected to one another, serve to enclose the bird and to ensure that it cannot escape.11

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.

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.”

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. In fact, studies suggest that white professionals may be the most likely of any group to have engaged in illegal drug activity in their lifetime, yet they are the least likely to be made criminals.

Rosa Parks was not the first person to refuse to give up her seat on a segregated bus in Montgomery, Alabama. Civil rights advocates considered and rejected two other black women as plaintiffs when planning a test case challenging segregation practices: Claudette Colvin and Mary Louise Smith. Both of them were arrested for refusing to give up their seats on Montgomery’s segregated buses, just months before Rosa Parks refused to budge.

Prison workers should be retrained for jobs and careers that do not involve caging human beings. Drug treatment on demand must be provided for all Americans, a far better investment of taxpayer money than prison cells for people struggling with drug addiction.

These principles are rooted in an understanding that any movement to end mass incarceration must deal with mass incarceration as a racial caste system, not as a system of crime control. This is not to say crime is unimportant; it is very important.

This system is better designed to create crime, and a perpetual class of people labeled criminals, rather than to eliminate crime or reduce the number of people under the system’s control.

standard estimates of the amount of crime reduction that can be attributable to mass incarceration range from 3 to 25 percent.

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.28 Although it is common to think of poverty and joblessness as leading to crime and imprisonment, this research suggests that the War on Drugs is a major cause of poverty, chronic unemployment, broken families, and crime today.

We must stop debating crime policy as though it were purely about crime. People must come to understand the racial history and origins of mass incarceration—the many ways our conscious and unconscious biases have distorted our judgments over the years about what is fair, appropriate, and constructive when responding to drug use and drug crime.

For conservatives, the ideal of colorblindness is linked to a commitment to individualism. In their view, society should be concerned with individuals, not groups. Gross racial disparities in health, wealth, education, and opportunity should be of no interest to our government, and racial identity should be a private matter, something best kept to ourselves. For liberals, the ideal of colorblindness is linked to the dream of racial equality. The hope is that one day we will no longer see race because race will lose all of its significance. In this fantasy, eventually race will no longer be a factor in mortality rates, the spread of disease, educational or economic opportunity, or the distribution of wealth.

Seeing race is not the problem. Refusing to care for the people we see is the problem.

We should hope not for a colorblind society but instead for a world in which we can see each other fully, learn from each other, and do what we can to respond to each other with love. That was King’s dream—a society that is capable of seeing each of us, as we are, with love. That is a goal worth fighting for.

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!

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. Whereas black success stories undermined the logic of Jim Crow, they actually reinforce the system of mass incarceration. Mass incarceration depends for its legitimacy on the widespread belief that all those who appear trapped at the bottom actually chose their fate.