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

by Michelle Alexander

What has changed since the collapse of Jim Crow has less to do with the basic structure of our society than with the language we use to justify it.

Today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans.

Once you’re labeled a felon, the old forms of discrimination—employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service—are suddenly legal. As a criminal, you are afforded scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it.

The United States imprisons a larger percentage of its black population than South Africa did at the height of apartheid.

At the time he declared this new war, less than 2 percent of the American public viewed drugs as the most important issue facing the nation.73 This fact was no deterrent to Reagan, for the drug war from the outset had little to do with public concern about drugs and much to do with public concern about race.

TANF imposed a five-year lifetime limit on welfare assistance, as well as a permanent, lifetime ban on eligibility for welfare and food stamps for anyone convicted of a felony drug offense—including simple possession of marijuana.

The size of the disbursements was linked to the number of city or county drug arrests. Each arrest, in theory, would net a given city or county about $153 in state and federal funding. Non-drug-related policing brought no federal dollars, even for violent crime.

This dramatic change in policy gave state and local police an enormous stake in the War on Drugs—not in its success, but in its perpetual existence.

Clearly, so long as law enforcement is free to seize assets allegedly associated with illegal drug activity—without ever charging anyone with a crime—local police departments, as well as state and federal law enforcement agencies, will continue to have a direct pecuniary interest in the profitability and longevity of the drug war.

The elimination of judicial discretion through mandatory sentencing laws has forced judges to impose sentences for drug crimes that are often longer than those imposed for violent crimes in many countries around the world.

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.

Georgia’s district attorneys, who have unbridled discretion to decide whether to seek this harsh penalty, had invoked it against only 1 percent of white defendants facing a second drug conviction but against 16 percent of black defendants.

"two strikes and you're out"

To date, not a single successful challenge has ever been made to racial bias in sentencing under McCleskey v. Kemp anywhere in the United States.

In New Jersey, the data showed that only 15 percent of all drivers on the New Jersey Turnpike were racial minorities, yet 42 percent of all stops and 73 percent of all arrests were of black motorists—despite the fact that blacks and whites violated traffic laws at almost exactly the same rate.

The Maryland studies produced similar results: African Americans comprised only 17 percent of drivers along a stretch of I-95 outside of Baltimore, yet they were 70 percent of those who were stopped and searched. Only 21 percent of all drivers along that stretch of highway were racial minorities (Latinos, Asians, and African Americans), yet those groups comprised nearly 80 percent of those pulled over and searched.

In Denver, displaying any two of a list of attributes—including slang, “clothing of a particular color,” pagers, hairstyles, or jewelry—earns youth a spot in the Denver Police’s gang database. In 1992, citizen activism led to an investigation, which revealed that eight out of every ten people of color in the entire city were on the list of criminal suspects.

“In this brave new world, punishment for the original offense is no longer enough; one’s debt to society is never paid.”

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.

Only two states—Maine and Vermont—permit people to vote while serving sentences behind bars.

Following the election, it was widely reported that, had the 600,000 formerly incarcerated people who had completed their sentence in Florida been allowed to vote, Al Gore would have been elected president of the United States rather than George W. Bush.

Less than two decades after the War on Drugs began, one in seven black men nationally had lost the right to vote, and as many as one in four in those states with the highest African American disenfranchisement rate.

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.35 This has enormous consequences for the redistricting process. White rural communities that house prisons wind up with more people in state legislatures representing them, while poor communities of color lose representatives because it appears their population has declined.

Racial stigma today makes collective action extremely difficult—sometimes impossible—whereas racial stigma during Jim Crow contained the seeds of revolt.

Preoccupation with the role of racial hostility in earlier caste systems can blind us to the ways in which every caste system, including mass incarceration, has been supported by racial indifference—a lack of care and compassion for people of other races.

We, as a nation, seem comfortable with 90 percent of the people arrested and convicted of drug offenses in some states being African American, but if the figure were 100 percent, the veil of colorblindness would be lost. We could no longer tell ourselves stories about why 90 percent might be a reasonable figure; nor could we continue to assume that good reasons exist for extreme racial disparities in the drug war, even if we are unable to think of such reasons ourselves. In short, the inclusion of some whites in the system of control is essential to preserving the image of a colorblind criminal justice system and maintaining our self-image as fair and unbiased people.

The genius of the current caste system, and what most distinguishes it from its predecessors, is that it appears voluntary. People choose to commit crimes, and that’s why they are locked up or locked out, we are told. This feature makes the politics of responsibility particularly tempting, as it appears the system can be avoided with good behavior. But herein lies the trap. All people make mistakes. All of us are sinners. All of us are criminals. All of us violate the law at some point in our lives. In fact, if the worst thing you have ever done is speed ten miles over the speed limit on the freeway, you have put yourself and others at more risk of harm than someone smoking marijuana in the privacy of his or her living room. Yet there are people in the United States serving life sentences for first-time drug offenses, something virtually unheard of anywhere else in the world.

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.

According to a report released by the U.S. Department of Justice’s Bureau of Statistics in 2006, the United States spent a record $185 billion for police protection, detention, judicial, and legal activities in 2003. Adjusting for inflation, these figures reflect a tripling of justice expenditures since 1982.

Even beyond private prison companies, a whole range of prison profiteers must be reckoned with if mass incarceration is to be undone, including phone companies that gouge families with loved ones behind bars by charging them exorbitant rates to communicate with their loved ones; gun manufacturers that sell Taser guns, rifles, and pistols to prison guards and police; private health care providers contracted by the state to provide (typically abysmal) health care to people in prison; the U.S. military, which relies on prison labor to provide military gear to soldiers in Iraq; corporations that use prison labor to avoid paying decent wages; and the politicians, lawyers, and bankers who structure deals to build new prisons often in predominately white rural communities—deals that often promise far more to local communities than they deliver.19 All of these corporate and political interests have a stake in the expansion—not the elimination—of the system of mass incarceration.

What a growing number of sociologists have found ought to be common sense: by locking millions of people out of the mainstream legal economy, by making it difficult or impossible for people to find housing or feed themselves, and by destroying familial bonds by warehousing millions for minor crimes, we make crime more—not less—likely in the most vulnerable communities.

But even assuming that our nation achieved as much as a 25 percent reduction in crime overall through mass incarceration, it still means that the overwhelming majority of crime—75 percent—persists despite mass incarceration, and despite mass incarceration costing nearly $200 billion annually. As a crime reduction strategy, mass incarceration is an abysmal failure. It is largely ineffective and extraordinarily expensive. Saying mass incarceration is an abysmal failure makes sense, though, only if one assumes that the criminal justice system is designed to prevent and control crime. But if mass incarceration is understood as a system of social control—specifically, racial control—then the system is a fantastic success.

The empirical evidence strongly supports the conclusion that declining wages, downsizing, deindustrialization, globalization, and cutbacks in government services represent much greater threats to the position of white men than so-called reverse discrimination.

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!

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.

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.

Mass incarceration depends for its legitimacy on the widespread belief that all those who appear trapped at the bottom actually chose their fate.