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

by Michelle Alexander

For example, imagine a young man, eighteen years old, who is arrested as part of an undercover operation and charged with two counts of dealing cocaine to minors. He had been selling to friends to earn extra money for shoes and basic things his mother could not afford. The prosecutor offers him probation if he agrees to plead guilty to both charges and to snitch on a bigger dealer. Terrified of doing prison time, he takes the deal. Several years later, he finds his punishment will never end. Branded a felon, he is struggling to survive and to support his children. One night he burglarizes a corner store and steals food, toothpaste, Pepsi, and diapers for his baby boy. He is arrested almost immediately a few blocks away. That’s it for him. He now has three strikes. His burglary can be charged as a third strike because of his two prior felony convictions. He is eligible for life imprisonment. His children will be raised without a father. Or

In fact, fifty years to life was the actual sentence given to Leandro Andrade for stealing videotapes, a sentence upheld by the Supreme Court.

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.

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.”87

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. Yet 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.

One study suggests that the entire increase in the prison population from 1980 to 2001 can be explained by sentencing policy changes.

As of 2008, there were approximately 2.3 million people in prisons and jails and a staggering 5.1 million people under “community correctional supervision”—i.e., on probation or parole.89 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.

As described in chapter 4, for people convicted of drug crimes, there is little hope of escape. Barred from public housing by law, discriminated against by private landlords, ineligible for food stamps, forced to “check the box” indicating a felony conviction on employment applications for nearly every job, and denied licenses for a wide range of professions, people whose only crime is drug addiction or possession of a small amount of drugs for recreational use find themselves locked out of the mainstream society and economy—permanently.

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

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.

Reducing the amount of time people spend behind bars—by eliminating harsh mandatory minimums—will alleviate some of the unnecessary suffering caused by this system, but it will not disturb the closed circuit. Those labeled felons will continue to cycle in and out of prison, subject to perpetual surveillance by the police, and unable to integrate into the mainstream society and economy. 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.

Imagine you are Erma Faye Stewart, a thirty-year-old, single African American mother of two who was arrested as part of a drug sweep in Hearne, Texas.1 All but one of the people arrested were African American. You are innocent. After a week in jail, you have no one to care for your two small children and are eager to get home. Your court-appointed attorney urges you to plead guilty to a drug distribution charge, saying the prosecutor has offered probation. You refuse, steadfastly proclaiming your innocence. Finally, after almost a month in jail, you decide to plead guilty so you can return home to your children. Unwilling to risk a trial and years of imprisonment, you are sentenced to ten years’ probation and ordered to pay $1,000 in fines, as well as court and probation costs. You are also now branded a drug felon. You are no longer eligible for food stamps; you may be discriminated against in employment; you cannot vote for at least twelve years; and you are about to be evicted from public housing. Once homeless, your children will be taken from you and put in foster care. A judge eventually dismisses all cases against the defendants who did not plead guilty. At trial, the judge finds that the entire sweep was based on the testimony of a single informant who lied to the prosecution. You, however, are still branded a drug felon, homeless, and desperate to regain custody of your children.

Now place yourself in the shoes of Clifford Runoalds, another African American victim of the Hearne drug bust.2 You returned home to Bryan, Texas, to attend the funeral of your eighteen-month-old daughter. Before the funeral services begin, the police show up and handcuff you. You beg the officers to let you take one last look at your daughter before she is buried. The police refuse. You are told by prosecutors that you are needed to testify against one of the defendants in a recent drug bust. You deny witnessing any drug transaction; you don’t know what they are talking about. Because of your refusal to cooperate, you are indicted on felony charges. After a month of being held in jail, the charges against you are dropped. You are technically free, but as a result of your arrest and period of incarceration, you lose your job, your apartment, your furniture, and your car. Not to mention the chance to say good-bye to your baby girl.

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, nearly quadrupling in three years, and then increasing steadily until it reached in 2000 a level more than twenty-six times the level in 1983.

The number of 2000 drug admissions for Latinos was twenty-two times the number of 1983 admissions.6 Whites have been admitted to prison for drug offenses at increased rates as well—the number of whites admitted for drug offenses in 2000 was eight times the number admitted in 1983—but their relative numbers are small compared to blacks’ and Latinos’.

Although the majority of illegal drug users and dealers nationwide are white, three-fourths of all people imprisoned for drug...

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.

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.

The notion that whites comprise the vast majority of drug users and dealers—and may well be more likely than other racial groups to commit drug crimes—may seem implausible to some, given the media imagery we are fed on a daily basis and the racial composition of our prisons and jails.

Even 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.

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.

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.

In the federal system, for example, homicide convictions account for 0.4 percent of the past decade’s growth in the federal prison population, while drug convictions account for nearly 61 percent of that expansion.24 In the state system, less than 3 percent of new court commitments to state prison typically involve people convicted of homicide.

People of color are convicted of drug offenses at rates out of all proportion to their drug crimes, a fact that has greatly contributed to the emergence of a vast new racial undercaste—a system of mass incarceration that governs the lives of millions of people inside and outside of prison walls.

This sort of claim invites skepticism. Nonracial explanations and excuses for the systematic mass incarceration of people of color are plentiful. 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. Moreover, because blacks and whites are almost never similarly situated (given extreme racial segregation in housing and disparate life experiences), trying to “control for race” in an effort to evaluate whether the mass incarceration of people of color is really about race or something else—anything else—is difficult. But it is not impossible.

In 2002, for example, there were 19.5 million illicit drug users, compared to 1.5 million drug arrests and 175,000 people admitted to prison for a drug offense.32

the Reagan administration launched a media campaign a few years after the drug war was announced in an effort to publicize horror stories involving black crack users and crack dealers in ghetto communities. Although crack cocaine had not yet hit the streets when the War on Drugs was declared in 1982, its appearance a few years later created the perfect opportunity for the Reagan administration to build support for its new war. Drug use, once considered a private, public-health matter, was reframed through political rhetoric and media imagery as a grave threat to the national order.

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.

Jerome Miller, the former executive director of the National Center for Institutions and Alternatives, described the dynamic this way: “There are certain code words that allow you never to have to say ‘race,’ but everybody knows that’s what you mean and ‘crime’ is one of those. … So when we talk about locking up more and more people, what we’re really talking about is locking up more and more black men.”

A survey was conducted in 1995 asking the following question: “Would you close your eyes for a second, envision a drug user, and describe that person to me?” The startling results were published in the Journal of Alcohol and Drug Education. Ninety-five percent of respondents pictured a black drug user, while only 5 percent imagined other racial groups.37 These results contrast sharply with the reality of drug crime in America. 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. Implicit bias tests may still show that you hold negative attitudes and stereotypes about blacks, even though you do not believe you do and do not want to.44

The risk that African Americans would be unfairly targeted should have been of special concern to the U.S. Supreme Court—the one branch of government charged with the responsibility of protecting “discrete and insular minorities” from the excesses of majoritarian democracy and guaranteeing constitutional rights for groups deemed unpopular or subject to prejudice.50 Yet when the time came for the Supreme Court to devise the legal rules that would govern the War on Drugs, the Court adopted rules that would maximize—not minimize—the amount of racial discrimination that would likely occur. It then closed the courthouse doors to claims of racial bias.

Not only did the Court reject the petitioners’ central claim—that using traffic stops as a pretext for drug investigations is unconstitutional—it ruled that claims of racial bias could not be brought under the Fourth Amendment. In other words, 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.

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.

Baldus and his colleagues subjected the raw data to highly sophisticated statistical analysis to see if nonracial factors might explain the disparities. Yet even after accounting for thirty-five nonracial variables, the researchers found that defendants charged with killing white victims were 4.3 times more likely to receive a death sentence than defendants charged with killing blacks. Black defendants, like McCleskey, who killed white victims had the highest chance of being sentenced to death in Georgia.

The Court accepted the statistical evidence as valid but insisted that evidence of conscious, racial bias in McCleskey’s individual case was necessary to prove unlawful discrimination. In the absence of such evidence, patterns of discrimination—even patterns as shocking as demonstrated by the Baldus study—did not violate the Fourteenth Amendment.

In erecting this high standard, the Court knew full well that the standard could not be met absent an admission that a prosecutor or judge acted because of racial bias. The majority opinion openly acknowledged that long-standing rules generally bar litigants from obtaining discovery from the prosecution regarding charging patterns and motives, and that similar rules forbid introduction of evidence of jury deliberations even when a juror has chosen to make deliberations public.

There is good reason to believe that, despite appearances, the McCleskey decision was not really about the death penalty at all; rather, the Court’s opinion was driven by a desire to immunize the entire criminal justice system from claims of racial bias.

The best evidence in support of this view can be found at the end of the majority opinion where the Court states that discretion plays a necessary role in the implementation of the criminal justice system, and that discrimination is an inevitable by-product of discretion. Racial discrimination, the Court seemed to suggest, was something that simply must be tolerated in the criminal justice system, provided no one admits to racial bias.

Although no admissions of racial bias or racist intent could be found in the record, Judge Cahill believed race was undeniably a factor in the crack sentencing laws and policies. He traced the history of the get-tough movement and concluded that fear coupled with unconscious racism had led to a lynch-mob mentality and a desire to control crime—and those deemed responsible for it—at any cost.

The prosecution appealed Clary’s case to the Eighth Circuit Court of Appeals, which reversed Judge Cahill in a unanimous opinion, finding that the case was not even close. In the court’s view, there was no credible evidence that the crack penalties were motivated by any conscious racial bigotry, as required by McCleskey v. Kemp. The court remanded the case back to the district court for resentencing. Clary—now married and a father—was ordered back to prison to complete his ten-year term.58

Fuck everything about this bullshit

If sentencing were the only stage of the criminal justice process in which racial biases were allowed to flourish, it would be a tragedy of gargantuan proportions. Thousands of people have had years of their lives wasted in prison—years they would have been free if they had been white.

Armstrong’s lawyers found it puzzling that no whites had been charged with crack offenses, given that most crack users are white.

“Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations, between persons in similar circumstances … the denial of equal justice is still within the prohibition of the Constitution.”

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.

Numerous studies have shown that prosecutors interpret and respond to identical criminal activity differently based on the race of the person charged with the crime.

A report in 2000 observed that among youth who have never been sent to a juvenile prison before, African Americans were more than six times as likely as whites to be sentenced to prison for identical crimes.64 A

A major reason for these disparities is unconscious and conscious racial biases infecting decision making. In the state of Washington, for example, a review of juvenile sentencing reports found that prosecutors routinely described black and white youth differently.66 Blacks committed crimes because of internal personality flaws such as disrespect. Whites did so because of external conditions such as family conflict.

I had an [assistant U.S. attorney who] wanted to drop the gun charge against the defendant [in a case in which] there were no extenuating circumstances. I asked, “Why do you want to drop the gun offense?” And he said, “‘He’s a rural guy and grew up on a farm. The gun he had with him was a rifle. He’s a good ol’ boy, and all good ol’ boys have rifles, and it’s not like he was a gun-toting drug dealer.” But he was a gun-toting drug dealer, exactly.