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

by Michelle Alexander

The decision in Armstrong effectively shields this type of biased decision making from judicial scrutiny for racial bias. Prosecutors are well aware that the exercise of their discretion is unchecked, provided no explicitly racist remarks are made, as it is next to impossible for defendants to prove racial bias. It is difficult to imagine a system better designed to ensure that racial biases and stereotypes are given free rein—while at the same time appearing on the surface to be colorblind—than the one devised by the U.S. Supreme Court.

The Delaware Supreme Court had rejected Neal’s equal protection claim on the grounds that “the great body of black men residing in this State are utterly unqualified [for jury service] by want of intelligence, experience, or moral integrity.”

Making matters worse, thirty-one states and the federal government subscribe to the practice of lifetime felon exclusion from juries. As a result, about 30 percent of black men are automatically banned from jury service for life.

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.

From the outset, the drug war could have been waged primarily in overwhelmingly white suburbs or on college campuses. SWAT teams could have rappelled from helicopters in gated suburban communities and raided the homes of high school lacrosse players known for hosting coke and ecstasy parties after their games. The police could have seized televisions, furniture, and cash from fraternity houses based on an anonymous tip that a few joints or a stash of cocaine could be found hidden in someone’s dresser drawer. Suburban homemakers could have been placed under surveillance and subjected to undercover operations designed to catch them violating laws regulating the use and sale of prescription “uppers.” All of this could have happened as a matter of routine in white communities, but it did not.

The militarized nature of law enforcement in ghetto communities has inspired rap artists and black youth to refer to the police presence in black communities as “The Occupation.” In these occupied territories, many black youth automatically “assume the position” when a patrol car pulls up, knowing full well that they will be detained and frisked no matter what. This dynamic often comes as a surprise to those who have spent little time in ghettos. Craig Futterman, a law professor at the University of Chicago, reports that his students frequently express shock and dismay when they venture into those communities for the first time and witness the distance between abstract legal principles and actual practice.

The dirty little secret of policing is that the Supreme Court has actually granted the police license to discriminate. This fact is not advertised by police departments, because law enforcement officials know that the public would not respond well to this fact in the era of colorblindness. It is the sort of thing that is better left unsaid.

The truth, however, is this: at other stages of the criminal justice process, the Court has indicated that overt racial bias necessarily triggers strict scrutiny—a concession that has not been costly, as very few law enforcement officials today are foolish enough to admit bias openly. But the Supreme Court has indicated that in policing, race can be used as a factor in discretionary decision making. In United States v. Brignoni-Ponce, the Court concluded it was permissible under the equal protection clause of the Fourteenth Amendment for the police to use race as a factor in making decisions about which motorists to stop and search. In that case, the Court concluded that the police could take a person’s Mexican appearance into account when developing reasonable suspicion that a vehicle may contain undocumented immigrants.

The Court said that “the likelihood that any person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor.”

“We do not engage in racial profiling,” even though their officers routinely use race as a factor when making decisions regarding whom to stop and search. The justification for the implicit doublespeak—“we do not racial-profile; we just stop people based on race”—can be explained in part by the Supreme Court’s jurisprudence. Because the Supreme Court has authorized the police to use race as a factor when making decisions regarding whom to stop and search, police departments believe that racial profiling exists only when race is the sole factor. Thus, if race is one factor but not the only factor, then it doesn’t really count as a factor at all.

Even seemingly race-neutral factors such as “prior criminal history” are not truly race-neutral. A black kid arrested twice for possession of marijuana may be no more of a “repeat offender” than a white frat boy who regularly smokes pot in his dorm room. But because of his race and his confinement to a racially segregated ghetto, the black kid has a criminal record, while the white frat boy, because of his race and relative privilege, does not.

Thus, when prosecutors throw the book at black youth who have multiple arrests or convictions, or when police stalk people with criminal records and subject them to regular frisks and searches on the grounds that it makes sense to “watch criminals closely,” they are often exacerbating racial disparities created by the discretionary decision to wage the War on Drugs almost exclusively in poor communities of color.

Whereas prosecutors claim they strike black jurors not because of their race but because of their hairstyle, police officers have their own stock excuses—e.g., “Your honor, we didn’t stop him because he’s black; we stopped him because he failed to use his turn signal at the right time,” or “It wasn’t just because he was black; it was also because he seemed nervous when he saw the police car.” Judges are just as reluctant to second-guess an officer’s motives as they are to second-guess prosecutors’. So long as officers refrain from uttering racial epithets and so long as they show the good sense not to say “the only reason I stopped him was ’cause he’s black,” courts generally turn a blind eye to patterns of discrimination by the police.

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.

Rather than reducing reliance on stop-and-frisk tactics following the Diallo shooting and the release of this disturbing data, the NYPD dramatically increased its number of pedestrian stops and continued to stop and frisk African Americans at grossly disproportionate rates. The NYPD stopped five times more people in 2005 than in 2002—the overwhelming majority of whom were African American or Latino.

By 2008, the NYPD was stopping 545,000 in a single year, and 80 percent of the people stopped were African Americans and Latinos. Whites comprised a mere 8 percent of people frisked by the NYPD, while African Americans accounted for 85 percent of all frisks.

Although the NYPD frequently attempts to justify stop-and-frisk operations in poor communities of color on the grounds that such tactics are necessary to get guns off the streets, less than 1 percent of stops (0.15 percent) resulted in guns being found, and guns and other contraband were seized less often in stops of African Americans and Latinos than of whites.110 As Darius Charney, a lawyer for the Center for Constitutional Rights, observed, these studies “confirm what we have been saying for the last 10 or 11 years, which is that with stop-and-frisk patterns—it is really race, not crime, that is driving this.”111

These routine encounters often serve as the gateway into the criminal justice system. The NYPD made 50,300 marijuana arrests in 2010 alone, mostly of young men of color. As one report noted, these marijuana arrests offer “training opportunities” for rookie police who can practice on ghetto kids while earning overtime.112 These arrests serve another purpose as well: they “are the most effective way for the NYPD to collect fingerprints, photographs and other information on young people not yet entered into the criminal databases.”

A simple arrest for marijuana possession can show up on criminal databases as “a drug arrest” without specifying the substance or the charge, and without clarifying even whether the person was convicted. These databases are then used by police and prosecutors, as well as by employers and housing officials—an electronic record that will haunt many for life. More than 353,000 people were arrested and jailed by the NYPD between 1997 and 2006 for simple possession of small amounts of marijuana, with blacks five times more likely to be arrested than whites.

The lawsuits have disappeared because, in a little noticed case called Alexander v. Sandoval, decided in 2001, the Supreme Court eliminated the last remaining avenue available for challenging racial bias in the criminal justice system.116

The Supreme Court did not reach the merits of the case, ruling instead that the plaintiffs lacked the legal right even to file the lawsuit. It concluded that Title VI does not provide a “private right of action” to ordinary citizens and civil rights groups; meaning that victims of discrimination can no longer sue under the law.

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. Staggering racial disparities in the drug war continue but rarely make the news. One recent development that did make news was President Obama’s decision to sign legislation reducing the hundred-to-one disparity in sentencing for crack versus powder cocaine to eighteen to one, a small step in the right direction.117 Under the new law, it takes 28 grams of crack cocaine to net a five-year mandatory minimum sentence, while it still takes selling 500 grams of powdered cocaine to net the same sentence. There should be no disparity—the ratio should be one-to-one. But that disparity is just the tip of the iceberg. As noted in chapter 2, this system depends primarily on the prison label, not prison time. What matters most is who gets swept into this system of control and then ushered into an undercaste. The legal rules adopted by the Supreme Court guarantee that those who find themselves locked up and permanently locked out due to the drug war are overwhelmingly black and brown.

Criminals, it turns out, are the one social group in America we have permission to hate. In “colorblind” America, criminals are the new whipping boys. They are entitled to no respect and little moral concern. Like the “coloreds” in the years following emancipation, criminals today are deemed a characterless and purposeless people, deserving of our collective scorn and contempt. When we say someone was “treated like a criminal,” what we mean to say is that he or she was treated as less than human, like a shameful creature. Hundreds of years ago, our nation put those considered less than human in shackles; less than one hundred years ago, we relegated them to the other side of town; today we put them in cages. Once released, they find that a heavy and cruel hand has been laid upon them.

The consequences for real families can be devastating. Without housing, people can lose their children. Take for example, the forty-two-year-old African American man who applied for public housing for himself and his three children who were living with him at the time.13 He was denied because of an earlier drug possession charge for which he had pleaded guilty and served thirty days in jail. Of course, the odds that he would have been convicted of drug possession would have been extremely low if he were white. But as an African American, he was not only targeted by the drug war but then denied access to housing because of his conviction. Since being denied housing, he has lost custody of his children and is homeless. Many nights he sleeps outside on the streets. Stiff punishment, indeed, for a minor drug offense—especially for his children, who are innocent of any crime.

Even beyond the need to comply with the conditions of parole, employment satisfies a more basic human need—the fundamental need to be self sufficient, to contribute, to support one’s family, and to add value to society at large. Finding a job allows a person to establish a positive role in the community, develop a healthy self-image, and keep a distance from negative influences and opportunities for illegal behavior. Work is deemed so fundamental to human existence in many countries around the world that it is regarded as a basic human right. Deprivation of work, particularly among men, is strongly associated with depression and violence.

Nearly every state allows private employers to discriminate on the basis of past criminal convictions. In fact, employers in most states can deny jobs to people who were arrested but never convicted of any crime. Only ten states prohibit all employers and licensing agencies from considering arrests, and three states prohibit some employers and occupational and licensing agencies from doing so.

One survey showed that although 90 percent of employers say they are willing to consider filling their most recent job vacancy with a welfare recipient, only 40 percent are willing to consider doing so with someone who had been convicted of a crime.

Four decades ago, employers were free to discriminate explicitly on the basis of race; today employers feel free to discriminate against those who bear the prison label—i.e., those labeled criminals by the state. The result is a system of stratification based on the “official certification of individual character and competence”—a form of branding by the government.34

In this regime, many people are thrown back in prison simply because they have been unable—with no place to live, and no decent job—to pay back thousands of dollars of prison-related fees, fines, and child support.

Today, many incarcerated people work in prison, typically earning far less than the minimum wage—often less than $3 per hour, sometimes as little as 25 cents. Their accounts are then “charged” for various expenses related to their incarceration, making it impossible for them to save the money that otherwise would allow them to pay off their debts or help them make a successful transition when released from prison. Typically, people are released from prison with only the clothes on their backs and a pittance in gate money. Sometimes the money is barely enough to cover the cost of a bus ticket back home.

It remains the case, however, that thousands of people with felony drug convictions in the United States are deemed ineligible for food stamps for the rest of their lives, including pregnant women, people in drug treatment or recovery, and people suffering from HIV/AIDS—simply because they were once caught with drugs.

No other country in the world disenfranchises people who are released from prison in a manner even remotely resembling the United States.

Typically the restoration process is a bureaucratic maze that requires the payment of fines or court costs. The process is so cumbersome, confusing, and onerous that many people who are theoretically eligible to vote never manage to get their voting rights back.54 Throughout much of the United States, people convicted of felonies are expected to pay fines and court costs, and submit paperwork to multiple agencies in an effort to win back a right that should never have been taken away in a democracy.

One investigative journalist described the situation this way: “Overwhelmingly, black people [in Mississippi] are scared of any form of contact with authorities they saw as looking for excuses to reincarcerate them. In neighborhood after neighborhood, the grandchildren of the civil rights pioneers from the 1950s were as scared to vote, because of prisons and the threat of prisons, as their grandparents were half a century ago because of the threat of the lynch mob.”

Not surprisingly, for many black men, the hurt and depression give way to anger. A black minister in Waterloo, Mississippi, explained his outrage at the fate that has befallen African Americans in the post–civil rights era. “It’s a hustle,” he said angrily. “‘Felony’ is the new N-word. They don’t have to call you a nigger anymore. They just say you’re a felon. In every ghetto you see alarming numbers of young men with felony convictions. Once you have that felony stamp, your hope for employment, for any kind of integration into society, it begins to fade out. Today’s lynching is a felony charge. Today’s lynching is incarceration. Today’s lynch mobs are professionals. They have a badge; they have a law degree. A felony is a modern way of saying, ‘I’m going to hang you up and burn you.’ Once you get that F, you’re on fire.”69

These communities desperately need their young men to be holding down jobs and supporting their families, rather than wasting away in prison cells. While there is widespread recognition that the War on Drugs is racist and that politicians have refused to invest in jobs or schools in their communities, parents of people in prison still feel intense shame—shame that their children have turned to crime despite the lack of obvious alternatives.

In this regard, it is helpful to step back and put the behavior of young black men who appear to embrace “gangsta culture” in the proper perspective. There is absolutely nothing abnormal or surprising about a severely stigmatized group embracing their stigma.

Psychologists have long observed that when people feel hopelessly stigmatized, a powerful coping strategy—often the only apparent route to self-esteem—is embracing one’s stigmatized identity.

For those black youth who are constantly followed by the police and shamed by teachers, relatives, and strangers, embracing the stigma of criminality is an act of rebellion—an attempt to carve out a positive identity in a society that offers them little more than scorn, contempt, and constant surveillance.

As a society, our decision to heap shame and contempt upon those who struggle and fail in a system designed to keep them locked up and locked out says far more about ourselves than it does about them. There is another path. Rather than shaming and condemning an already deeply stigmatized group, we, collectively, can embrace them—not necessarily their behavior, but them—their humanness. As the saying goes, “You gotta hate the crime, but love the criminal.” This is not a mere platitude; it is a prescription for liberation. If we had actually learned to show love, care, compassion, and concern across racial lines during the Civil Rights Movement—rather than go colorblind—mass incarceration would not exist today.

The following day, social critic and sociologist Michael Eric Dyson published a critique of Obama’s speech in Time magazine. He pointed out that the stereotype of black men being poor fathers may well be false. Research by Boston College social psychologist Rebekah Levine Coley found that black fathers not living at home are more likely to keep in contact with their children than fathers of any other ethnic or racial group. Dyson chided Obama for evoking a black stereotype for political gain, pointing out that “Obama’s words may have been spoken to black folk, but they were aimed at those whites still on the fence about whom to send to the White House.”

Although a million black men can be found in prisons and jails, public acknowledgment of the role of the criminal justice system in “disappearing” black men is surprisingly rare. Even in the black media—which is generally more willing to raise and tackle issues related to criminal justice—an eerie silence can often be found.5

Hundreds of thousands of black men are unable to be good fathers for their children, not because of a lack of commitment or desire but because they are warehoused in prisons, locked in cages. They did not walk out on their families voluntarily; they were taken away in handcuffs, often due to a massive federal program known as the War on Drugs.

More African American adults are under correctional control today—in prison or jail, on probation or parole—than were enslaved in 1850, a decade before the Civil War began.7 The mass incarceration of people of color is a big part of the reason that a black child born today is less likely to be raised by both parents than a black child born during slavery.

More black men are imprisoned today than at any other moment in our nation’s history. More are disenfranchised today than in 1870, the year the Fifteenth Amendment was ratified prohibiting laws that explicitly deny the right to vote on the basis of race.9 Young black men today may be just as likely to suffer discrimination in employment, housing, public benefits, and jury service as a black man in the Jim Crow era—discrimination that is perfectly legal, because it is based on one’s criminal record.

This is the new normal, the new racial equilibrium.

Racial minorities were always overrepresented in the criminal justice system, but as sociologists have noted, until the mid-1980s, the system was marginal to communities of color.

“before the 1980s the penal system was not a dominant presence in the disadvantaged neighborhoods.”16 Today, the War on Drugs has given birth to a system of mass incarceration that governs not just a small fraction of a racial or ethnic minority but entire communities of color. In ghetto communities, nearly everyone is either directly or indirectly subject to the new caste system. The system serves to redefine the terms of the relationship of poor people of color and their communities to mainstream, white society, ensuring their subordinate and marginal status. The criminal and civil sanctions that were once reserved for a tiny minority are now used to control and oppress a racially defined majority in many communities, and the systematic manner in which the control is achieved reflects not just a difference in scale.

If Martin Luther King Jr. were to return miraculously to Chicago, some forty years after bringing his Freedom Movement to the city, he would be saddened to discover that the same issues on which he originally focused still produce stark patterns of racial inequality, segregation, and poverty. He would also be struck by the dramatically elevated significance of one particular institutional force in the perpetuation and deepening of those patterns: the criminal justice system. In the few short decades since King’s death, a new regime of racially disparate mass incarceration has emerged in Chicago and become the primary mechanism for racial oppression and the denial of equal opportunity.

In Chicago, like the rest of the country, the War on Drugs is an engine of mass incarceration, as well as a major cause of gross racial disparities throughout the system.