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

by Michelle Alexander

Twice as many people are on probation or parole in this country as are locked in literal cages. 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.

bipartisan consensus in support of modest prison downsizing would likely be reached—not because of an awakening to the humanity of those caged, but because caging on such a massive scale had become too expensive.

“e-carceration” turns entire communities into open-air, digital prisons.

“Between me and the other world, there is ever an unasked question: How does it feel to be a problem?” White people are generally allowed to have problems, and they’ve historically been granted the power to define and respond to them. But people of color—in this “land of the free” forged through slavery and genocide—are regularly viewed and treated as the problem.

these corporations are well positioned to make billions locking entire communities in digital prisons.

people with race and class privilege are generally shielded from criminal prosecution, even though their crimes often cause far greater harm than the crimes of the poor.

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 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.5

The impact of the drug war has been astounding. In less than thirty years, the U.S. penal population exploded from around 300,000 to more than 2 million, with drug convictions accounting for the majority of the increase.7

These stark racial disparities cannot be explained by rates of drug crime. Studies show that people of all colors use and sell illegal drugs at remarkably similar rates.

Few legal rules meaningfully constrain the police in the drug war, and enormous financial incentives have been granted to law enforcement to engage in mass drug arrests through military-style tactics.

the legal rules that structure the system guarantee discriminatory results. These legal rules ensure that the undercaste is overwhelmingly black and brown.

mass incarceration is designed to warehouse a population deemed disposable—

“How can you say that a racial caste system exists today? Just look at Barack Obama! Just look at Oprah Winfrey!”

Deliberately and strategically, the planter class extended special privileges to poor whites in an effort to drive a wedge between them and black slaves.

the Constitution was designed so the federal government would be weak, not only in its relationship to private property, but also in relationship to the rights of states to conduct their own affairs. The language of the Constitution itself was deliberately colorblind

“all free negroes and mulattoes over the age of eighteen” must have written proof of a job at the beginning of every year.

The Thirteenth Amendment to the U.S. Constitution had abolished slavery but allowed one major exception: slavery remained appropriate as punishment for a crime.

“As long as poor whites directed their hatred and frustration against the black competitor, the planters were relieved of class hostility directed against them.”

Like the earlier system, Jim Crow seemed “natural,” and it became difficult to remember that alternative paths were not only available at one time, but nearly embraced.

Appealing to the racism and vulnerability of working-class whites had worked to defeat the Populists at the turn of the century, and a growing number of conservatives believed the tactic should be employed again, albeit in a more subtle fashion.

Just as race had been used at the turn of the century by Southern elites to rupture class solidarity at the bottom of the income ladder, race as a national issue had broken up the Democratic New Deal “bottom-up” coalition—

called pink-collar jobs like nursing or clerical work was negligible.82 The decline in legitimate employment opportunities among innercity residents created economic desperation, leading some to sell drugs—most notably crack cocaine. Crack

The act also expanded use of the death penalty for serious drug-related offenses and imposed new mandatory minimums for drug offenses, including a five-year mandatory minimum for simple possession of cocaine base—with no evidence of intent to sell.

Democratic politicians and policymakers were now attempting to wrest control of the crime and drug issues from Republicans by advocating stricter anticrime and antidrug laws—all in an effort to win back the so-called “swing voters” who were defecting to the Republican Party.

Clinton endorsed the idea of a federal “three strikes and you’re out” law, which he advocated in his 1994 State of the Union address to enthusiastic applause on both sides of the aisle. The $30 billion crime bill sent to President Clinton in August 1994 was hailed as a victory for the Democrats, who “were able to wrest the crime issue from the Republicans and make it their own.”

“One Strike and You’re Out” Initiative, Clinton explained: “From now on, the rule for residents who commit crime and peddle drugs should be one strike and you’re out.”

As a result, more than 31 million people have been arrested for drug offenses since the drug war began.

The absence of significant constraints on the exercise of police discretion is a key feature of the drug war’s design.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or things to be seized.

“to discover weapons that might be used against the officer.”10 Known as the stop-and-frisk rule, the Terry decision stands for the proposition that, so long as a police officer has “reasonable articulable suspicion” that someone is engaged in criminal activity and dangerous, it is constitutionally permissible to stop, question, and frisk him or her—even in the absence of probable cause.

confronted by police at the back of the bus, the proper question, according to the Court, was whether “a reasonable person” in Bostick’s shoes would have felt free to terminate the encounter. A reasonable person, the Court concluded, would have felt free to sit there and refuse to answer the police officer’s questions, and would have felt free to tell the officer “No, you can’t search my bag.”

So long as orders are phrased as a question, compliance is interpreted as consent.

Pretext stops, like consent searches, have received the Supreme Court’s unequivocal blessing. Just ask Michael Whren and James Brown.

The U.S. Supreme Court struck down this basic requirement as “unrealistic.” In so doing, the Court made clear to all lower courts that, from now on, the Fourth Amendment should place no meaningful constraints on the police in the War on Drugs. No

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.

Huge cash grants were made to those law enforcement agencies that were willing to make drug-law enforcement a top priority.

police deployed a flash-bang grenade, resulting in a blinding, deafening explosion. Alberta went into cardiac arrest and died two hours later. The death was ruled a homicide but no one was indicted.

local law enforcement agencies were granted the authority to keep, for their own use, the vast majority of cash and assets they seized when waging the drug war.

allow state and local police agencies to retain up to 80 percent

This means, for example, that a woman who knew that her husband occasionally smoked pot could have her car forfeited to the government because she allowed him to use her car. Because

Even if the cost is not an issue, the incentives are all wrong. If the police seized your car worth $5,000, or took $500 cash from your home, would you be willing to pay an attorney more than your assets are worth to get them back? If you haven’t been charged with a crime, are you willing to risk the possibility that fighting the forfeiture might prompt the government to file criminal charges against you?

drug busts motivated by the desire to seize cash, cars, homes, and other property are still perfectly legal. Law enforcement agencies are still allowed, through revenue-sharing agreements with the federal government, to keep seized assets for their own use.

In some states, such as Ohio, as many as 90 percent of children charged with criminal wrongdoing are not represented by a lawyer.

reliable estimates of the number of innocent people currently in prison tend to range from 2 percent to 5 percent.74 While

Remarkably, in the United States, a life sentence is deemed perfectly appropriate for someone whose only crime is a first-time drug offense.

U.S. District Judge William W. Schwarzer, a Republican appointee, is not known as a light sentencer. Thus it was that everyone in his San Francisco courtroom watched in stunned silence as Schwarzer, known for his stoic demeanor, choked with tears as he anguished over sentencing Richard Anderson, a first offender Oakland longshoreman, to ten years in prison without parole for what appeared to be a minor mistake in judgment in having given a ride to a drug dealer for a meeting with an undercover agent.86

Of the nearly 7.3 million people currently under correctional control, only 2.3 million are in prison or jail.26

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.

the Court barred any victim of race discrimination by the police from even alleging a claim of racial bias under the Fourth Amendment. According to the Court, whether or not police discriminate on the basis of race when making traffic stops is irrelevant to a consideration of whether their conduct is “reasonable” under the Fourth Amendment.