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

by Michelle Alexander

Some of the most widely cited examples involved wealthy whites whose property was seized. One highly publicized case involved a reclusive millionaire, Donald Scott, who was shot and killed when a multiagency task force raided his two-hundred-acre Malibu ranch purportedly in search of marijuana plants. They never found a single marijuana plant in the course of the search. A subsequent investigation revealed that the primary motivation for the raid was the possibility of forfeiting Scott’s property. If the forfeiture had been successful, it would have netted the law enforcement agencies about $5 million in assets.

None of this is to suggest that the financial rewards offered for police participation in the drug war are the only reason that law enforcement decided to embrace the war with zeal. Undoubtedly, the political and cultural context of the drug war—particularly in the early years—encouraged the roundup. When politicians declare a drug war, the police (our domestic warriors) undoubtedly feel some pressure to wage it. But it is doubtful that the drug war would have been launched with such intensity on the ground but for the bribes offered for law enforcement’s cooperation.

Obama honored his word following the election, drastically increasing funding for the Byrne grant program despite its abysmal track record. The Economic Recovery Act of 2009 included more than $2 billion in new Byrne funding and an additional $600 million to increase state and local law enforcement across the country.62 Relatively little organized opposition to the drug war currently exists, and any dramatic effort to scale back the war may be publicly condemned as “soft” on crime.

Sometimes defenders have well over one hundred clients at a time; many of these clients are facing decades behind bars or life imprisonment. Too often the quality of court-appointed counsel is poor because the miserable working conditions and low pay discourage good attorneys from participating in the system. And some states deny representation to impoverished defendants on the theory that somehow they should be able to pay for a lawyer, even though they are scarcely able to pay for food or rent.

Even when people are charged with extremely serious crimes, such as murder, they may find themselves languishing in jail for years without meeting with an attorney, much less getting a trial.

Though it is not widely known, the prosecutor is the most powerful law enforcement official in the criminal justice system. One might think that judges are the most powerful, or even the police, but in reality the prosecutor holds the cards. It is the prosecutor, far more than any other criminal justice official, who holds the keys to the jailhouse door.

After the police arrest someone, the prosecutor is in charge. Few rules constrain the exercise of his or her discretion. The prosecutor is free to dismiss a case for any reason or no reason at all. The prosecutor is also free to file more charges against a defendant than can realistically be proven in court, so long as probable cause arguably exists—a practice known as overcharging. The practice of encouraging defendants to plead guilty to crimes, rather than affording them the benefit of a full trial, has always carried its risks and downsides. Never before in our history, though, have such an extraordinary number of people felt compelled to plead guilty, even if they are innocent, simply because the punishment for the minor, nonviolent offense with which they have been charged is so unbelievably severe. When prosecutors offer “only” three years in prison when the penalties defendants could receive if they took their case to trial would be five, ten, or twenty years—or life imprisonment—only extremely courageous (or foolish) defendants turn the offer down. The pressure to plead guilty to crimes has increased exponentially since the advent of the War on Drugs.

In 1986, Congress passed The Anti-Drug Abuse Act, which established extremely long mandatory minimum prison terms for low-level drug dealing and possession of crack cocaine. The typical mandatory sentence for a first-time drug offense in federal court is five or ten years. By contrast, in other developed countries around the world, a first- time ...

It is impossible to know for certain how many innocent drug defendants convict themselves every year by accepting a plea bargain out of fear of mandatory sentences, or how many are convicted due to lying informants and paid witnesses, but reliable estimates of the number of innocent people currently in prison tend to range from 2 percent to 5 percent.74 While those numbers may sound small (and probably are underestimates), they translate into thousands of innocent people who are locked up, some of whom will die in prison.

The real point here, however, is not that innocent people are locked up. That has been true since penitentiaries first opened in America. The critical point is that thousands of people are swept into the criminal justice system every year pursuant to the drug war without much regard for their guilt or innocence. The police are allowed by the courts to conduct fishing expeditions for drugs on streets and freeways based on nothing more than a hunch. Homes may be searched for drugs based on a tip from an unreliable, confidential informant who is trading the information for money or to escape prison time. And 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. This is the way the roundup works, and it works this way in virtually every major city in the United States.

Mandatory drug sentencing laws strip judges of their traditional role of considering all relevant circumstances in an effort to do justice in the individual case.

Nevertheless, harsh mandatory minimum sentences for people convicted of drug offenses have been consistently upheld by the U.S. Supreme Court.

The clear majority of those subject to harsh mandatory minimum sentences in the federal system are people convicted of drug offenses. Most are low-level, minor drug dealers—not “drug kingpins.”

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.

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

Because harsh sentencing is a major cause of the prison explosion, one might reasonably assume that substantially reducing the length of prison sentences would effectively dismantle this new system of control. That view, however, is mistaken. This system depends on the prison label, not prison time.

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.

No wonder, then, that most people labeled felons are swept back into prisons not long after their release. According to a Bureau of Justice Statistics study, about 30 percent of those released from prison in its sample were rearrested within six months of release.90 Within three years, nearly 68 percent were rearrested at least once for a new offense.91 Only a small minority are rearrested for violent crimes; the vast majority are rearrested for property offenses, drug offenses, and offenses against the public order.92

With respect to parole, in 1980, only 1 percent of all prison admissions were parole violators. Twenty years later, more than one-third (35 percent) of prison admissions resulted from parole violations.93 To put the matter more starkly: About as many people were returned to prison for parole violations in 2000 as were admitted to prison in 1980 for all reasons.94

Although the majority of illegal drug users and dealers nationwide are white, three-fourths of all people imprisoned for drug offenses have been black or Latino.

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.

Any notion that drug use among blacks is more severe or dangerous is belied by the data; white youth have about three times the number of drug-related emergency room visits as their African American counterparts.

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.

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—

The most important fact to keep in mind, however, is that debates about prison statistics typically ignore a key fact: 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.26 The rest are on probation or parole. More than 4 million people are on probation in the United States (roughly twice the number in prison) and only 19 percent of them were convicted of a violent offense.

false notion that our system of mass incarceration is primarily concerned with violence and that it is well designed to keep people safe. In fact, the system is primarily concerned with the perpetual control and marginalization of the dispossessed.

If we truly want to end violence in our communities, we must come to understand, as discussed in the final chapter, the ways in which mass incarceration increases—not decreases—violence and multiplies its harms.

despite the colorblind rhetoric and fanfare of recent years, the design of the drug war effectively guarantees that those who are swept into the nation’s new undercaste are largely black and brown.

The central question, then, is how exactly does a formally colorblind criminal justice system achieve such racially discriminatory results? Rather easily, it turns out. The process occurs in two stages.

The first step is to grant law enforcement officials extraordinary discretion regarding whom to stop, search, arrest, and charge for drug offenses, thus ensuring that conscious and unconscious racial beliefs and stereotypes will be given free rein. Unbridled discretion inevitably creates huge racial disparities.

Then, the damning step:...

courthouse doors to all claims by defendants and private litigants that the criminal justice system operates in racially discriminatory fashion. Demand that anyone who wants to challenge racial bias in the system offer, in advance, clear proof that the racial disparities are the product of intentional racial discrimination—i.e., the work of a bigot. This evidence will almost never be available in the era of colorblindness, because everyone knows—but does not say—that the enemy in the War on Drugs can be identified by ra...

Law enforcement officials, no less than the rest of us, have been exposed to the racially charged political rhetoric and media imagery associated with the drug war. In fact, for nearly three decades, news stories regarding virtually all street crime have disproportionately featured African Americans. One study suggests that the standard crime news “script” is so prevalent and so thoroughly racialized that viewers imagine a black perpetrator even when none exists. In that study, 60 percent of viewers who saw a story with no image falsely recalled seeing one, and 70 percent of those viewers believed the perpetrator to be African American.38

Viewed as a whole, the relevant research by cognitive and social psychologists to date suggests that racial bias in the drug war was inevitable, once a public consensus was constructed by political and media elites that drug crime is black and brown. Once blackness and crime, especially drug crime, became conflated in the public consciousness, the “criminalblackman,” as termed by legal scholar Kathryn Russell, would inevitably become the primary target of law enforcement.

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 Supreme Court has made it virtually impossible to challenge racial bias in the criminal justice system under the Fourteenth Amendment, and it has barred litigation of such claims under federal civil rights laws as well.

Georgia’s “two strikes and you’re out” sentencing scheme, which imposes life imprisonment for a second drug offense. 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. The result was that 98.4 percent of those serving life sentences under the provision were black.

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.61 One widely cited study was conducted by the San Jose Mercury News. The study reviewed seven hundred thousand criminal cases that were matched by crime and criminal history of the defendant. The analysis revealed that similarly situated whites were far more successful than African Americans and Latinos in the plea bargaining process;

The most comprehensive studies of racial bias in the exercise of prosecutorial and judicial discretion involve the treatment of juveniles. These studies have shown that youth of color are more likely to be arrested, detained, formally charged, transferred to adult court, and confined to secure residential facilities than their white counterparts.

As legal scholar Benno Schmidt has observed, from the end of Reconstruction through the New Deal, “the systematic exclusion of black men from Southern juries was about as plain as any legal discrimination could be short of proclamation in state statutes or confession by state officials.”

Notwithstanding Batson’s formal prohibition on race discrimination in jury selection, the Supreme Court and lower federal courts have tolerated all but the most egregious examples of racial bias in jury selection.

Potential jurors are typically called for service based on the list of registered voters or Department of Motor Vehicle lists—sources that contain disproportionately fewer people of color, because people of color are significantly less likely to own cars or register to vote.

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.

In Purkett v. Elm, in 1995, the Supreme Court ruled that any race-neutral reason, no matter how silly, ridiculous, or superstitious, is enough to satisfy the prosecutor’s burden of showing that a pattern of striking a particular racial group is not, in fact, based on race. In that case, the prosecutor offered the following explanation to justify his strikes of black jurors: I struck [juror] number twenty-two because of his long hair. He had long curly hair. He had the longest hair of anybody on the panel by far. He appeared not to be a good juror for that fact…. Also, he had a mustache and a goatee type beard. And juror number twenty-four also had a mustache and goatee type beard…. And I don’t like the way they looked, with the way the hair is cut, both of them. And the mustaches and the beards look suspicious to me.79

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.

The hypersegregation of the black poor in ghetto communities has made the roundup easy. Confined to ghetto areas and lacking political power, the black poor are convenient targets. Douglas Massey and Nancy Denton’s book, American Apartheid, documents how racially segregated ghettos were deliberately created by federal policy, not impersonal market forces or private housing choices.

The conventional wisdom—that “get tough” tactics are a regrettable necessity in poor communities of color and that efficiency requires the drug war to be waged in the most vulnerable neighborhoods—turns out to be, as many have long suspected, nothing more than wartime propaganda, not sound policy.

Defending against claims of racial bias in policing is easy. Because police officers never offer race as the only reason for a stop or search, any police officer, even the most racist, will be able to cite multiple nonracial reasons for initiating an encounter, including any number of the so-called “indicators” of drug trafficking discussed in chapter 2, such as appearing too nervous or too calm.

Studies of racial profiling have shown that police do, in fact, exercise their discretion regarding whom to stop and search in the drug war in a highly discriminatory manner.97 Not only do police discriminate in their determinations regarding where to wage the war, but they also discriminate in their judgments regarding whom to target outside of the ghetto’s invisible walls. The most famous of these studies were conducted in New Jersey and Maryland in the 1990s.

funded program known as Operation Pipeline. 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.