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

by Michelle Alexander

A subsequent study conducted by the attorney general of New Jersey found that searches on the turnpike were even more discriminatory than the initial stops—77 percent of all consent searches were of minorities. 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.99 What most surprised many analysts was that, in both studies, whites were actually more likely than people of color to be carrying illegal drugs or contraband in their vehicles.

Although whites were more likely to be guilty of carrying drugs, they were far less likely to be viewed as suspicious, resulting in relatively few stops, searches, and arrests of whites. The former New Jersey attorney general dubbed this phenomenon the “circular illogic of racial profiling.” Law enforcement officials, he explained, often point to the racial composition of our prisons and jails as a justification for targeting racial minorities, but the empirical evidence actually suggested the opposite conclusion was warranted. The disproportionate imprisonment of people of color was, in part, a product of racial profiling—not a justification for

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.

Throughout the United States, public housing agencies have adopted exclusionary policies that deny eligibility to applicants even with the most minor criminal backgrounds. The crackdown inspired by the War on Drugs has resulted in unprecedented punitiveness, as housing officials began exercising their discretion to deny poor people access to public housing for virtually any crime.

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.

a California study reported that an estimated 30 to 50 percent of individuals under parole supervision in San Francisco and Los Angeles were homeless.16 Access to decent, stable, and affordable housing is a basic human right, and it also increases substantially the likelihood a person with a past criminal record will obtain and retain employment and remain drug- and crime-free. Research conducted by the Corporation for Supportive Housing in New York State shows that the use of state prisons and city jails dropped by 74 percent and 40 percent respectively when people with past criminal records were provided with supportive housing.17

Nearly every state allows private employers to discriminate on the basis of past criminal convictions.

Black men convicted of felonies are the least likely to receive job offers of any demographic group, and suburban employers are the most unwilling to hire them.

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.

If shackling people with criminal records with a lifetime of debt and authorizing discrimination against them in employment, housing, education, and public benefits is not enough to send the message that they are not wanted and not even considered full citizens, then stripping voting rights from those labeled criminals surely gets the point across.

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

about half of European countries allow all people behind bars to vote, while others disqualify only a small number from the polls.51

Felony’ is the new N-word. They don’t have to call you a nigger anymore. They just say you’re a felon.

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.”

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. Hence “black is beautiful” and “gay pride”—slogans and anthems of political movements aimed at ending not only legal discrimination, but the stigma that justified it. Indeed, the act of embracing one’s stigma is never merely a psychological maneuver; it is a political act—an act of resistance and defiance in a society that seeks to demean a group based on an inalterable trait. As a gay activist once put it, “Only by fully embracing the stigma itself can one neutralize the sting and make it laughable.”87

The sense that black men have disappeared is rooted in reality. The U.S. Census Bureau reported in 2002 that there are nearly 3 million more black adult women than men in black communities across the United States, a gender gap of 26 percent.3 In many urban areas, the gap is far worse, rising to more than 37 percent in places like New York City.

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.8

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.

if you are white and middle class, you might not even realize the drug war is still going on. Most high school and college students today have no recollection of the political and media frenzy surrounding the drug war in the early years. They were young children when the war was declared, or not even born yet. Crack is out; terrorism is in.

The widespread and mistaken belief that racial animus is necessary for the creation and maintenance of racialized systems of social control is the most important reason that we, as a nation, have remained in deep denial.

Many whites who supported Jim Crow justified it on paternalist grounds, actually believing they were doing blacks a favor or believing the time was not yet “right” for equality. The disturbing images from the Jim Crow era also make it easy to forget that many African Americans were complicit in the Jim Crow system, profiting from it directly or indirectly or keeping their objections quiet out of fear of the repercussions. Our understanding of racism is therefore shaped by the most extreme expressions of individual bigotry, not by the way in which it functions naturally, almost invisibly (and sometimes with genuinely benign intent), when it is embedded in the structure of a social system.

racism manifests itself not only in individual attitudes and stereotypes, but also in the basic structure of society.

metaphor, explains it this way: if one thinks about racism by examining only one wire of the cage, or one form of disadvantage, it is difficult to understand how and why the bird is trapped. Only a large number of wires arranged in a specific way, and connected to one another, serve to enclose the bird and to ensure that it cannot escape.11

What is particularly important to keep in mind is that any given wire of the cage may or may not be specifically developed for the purpose of trapping the bird, yet it still operates (together with the other wires) to restrict its freedom. By the same token, not every aspect of a racial caste system needs to be developed for the specific purpose of controlling black people in order for it to operate (together with other laws, institutions, and practices) to trap them at the bottom of a racial hierarchy.

One way of understanding our current system of mass incarceration is to think of it as a birdcage with a locked door. It is a set of structural arrangements that locks a racially distinct group into a subordinate political, social, and economic position, effectively creating a second-class citizenship. Those trapped within the system are not merely disadvantaged in the sense that they are competing on an unequal playing field or face additional hurdles to political or economic success; rather, the system itself is structured to lock them into a subordinate position.

Precisely how the system of mass incarceration works to trap African Americans in a virtual (and literal) cage can best be understood by viewing the system as a whole. In earlier chapters, we considered various wires of the cage in isolation; here, we put the pieces together, step back, and view the cage in its entirety.

This, in brief, is how the system works: the War on Drugs is a vehicle through which extraordinary numbers of black men are forced into the cage. The entrapment occurs in three distinct phases, each of which has been explored earlier, but a brief review is useful here. The first stage is the roundup. Vast numbers of people are swept into the criminal justice system by the police, who conduct drug operations primarily in poor communities of color.

The conviction marks the beginning of the second phase: the period of formal control. Once arrested, defendants are generally denied meaningful legal representation and pressured to plead guilty whether they are or not. Prosecutors are free to “load up” defendants with extra charges, and their decisions cannot be challenged for racial bias. Once convicted, due to the drug war’s harsh sentencing laws, people convicted of drug offenses in the United States spend more time under the criminal justice system’s formal control—in jail or prison, on probation or parole—than people anywhere else in the world.

The final stage has been dubbed by some advocates as the “period of invisible punishment.”13 This term, first coined by Jeremy Travis, is meant to describe the unique set of criminal sanctions that are imposed on individuals after they step outside the prison gates, a form of punishment that operates largely outside of public view and takes effect outside the traditional sentencing framework. These sanctions are imposed by operation of law rather than decisions of a sentencing judge, yet they often have a greater impact on one’s life course than the months or years one actually spends behind bars. These laws operate collectively to ensure that the vast majority of people convicted of crimes will never integrate into mainstream, white society. They will be discriminated against, legally, for the rest of their lives—denied employment, housing, education, and public benefits.

The nature of the criminal justice system has changed. It is no longer concerned primarily with the prevention and punishment of crime, but rather with the management and control of the dispossessed.

Jim Crow and mass incarceration have similar political origins. As described in chapter 1, both caste systems were born, in part, due to a desire among white elites to exploit the resentments, vulnerabilities, and racial biases of poor and working-class whites for political or economic gain.

The most obvious parallel between Jim Crow and mass incarceration is legalized discrimination.

Many of the forms of discrimination that relegated African Americans to an inferior caste during Jim Crow continue to apply to huge segments of the black population today—provided they are first labeled felons.

Following the collapse of Jim Crow, all of the race-neutral devices for excluding blacks from the electorate were eliminated through litigation or legislation, except felon disenfranchisement laws.

Under the usual-residence rule, the Census Bureau counts imprisoned individuals as residents of the jurisdiction in which they are incarcerated. 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.

Another clear parallel between mass incarceration and Jim Crow is the systematic exclusion of blacks from juries. One

Currently, McCleskey v. Kemp and its progeny serve much the same function as Dred Scott and Plessy. In McCleskey, the Supreme Court demonstrated that it is once again in protection mode—firmly committed to the prevailing system of control. As chapter 3 demonstrated, the Court has 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.

Prisons, however, are not the only vehicle for racial segregation. Segregation is also created and perpetuated by the flood of people who return to ghetto communities from prisons each year.

Because the drug war has been waged almost exclusively in poor communities of color, when people convicted of drug crimes are released, they are generally returned to racially segregated ghetto communities—the places they call home. In many cities, the re-entry phenomenon is highly concentrated in a small number of neighborhoods.

Arguably the most important parallel between mass incarceration and Jim Crow is that both have served to define the meaning and significance of race in America. Indeed, a primary function of any racial caste system is to define the meaning of race in its time. Slavery defined what it meant to be black (a slave), and Jim Crow defined what it meant to be black (a second-class citizen). Today mass incarceration defines the meaning of blackness in America: black people, especially black men, are criminals. That is what it means to be black.

The temptation is to insist that black men “choose” to be criminals; the system does not make them criminals, at least not in the way that slavery made blacks slaves or Jim Crow made them second-class citizens. The myth of choice here is seductive, but it should be resisted. African Americans are not significantly more likely to use or sell prohibited drugs than whites, but they are made criminals at drastically higher rates for precisely the same conduct. In fact, studies suggest that white professionals may be the most likely of any group to have engaged in illegal drug activity in their lifetime, yet they are the least likely to be made criminals.52 The prevalence of illegal drug activity among all racial and ethnic groups creates a situation in which, due to limited law enforcement resources and political constraints, some people are made criminals while others are not. Black people have been made criminals by the War on Drugs to a degree that dwarfs its effect on other racial and ethnic groups, especially whites. And the process of making them criminals has produced racial stigma.

In the era of colorblindness, it is no longer permissible to hate blacks, but we can hate criminals.

As discussed in chapter 4, during Jim Crow, racial stigma contributed to racial solidarity in the black community. Racial stigma today, however—that is, the stigma of black criminality—has turned the black community against itself, destroyed networks of mutual support, and created a silence about the new caste system among many of the people most affected by it.58

This difference in public attitudes has important implications for reform efforts. Claims that mass incarceration is analogous to Jim Crow will fall on deaf ears and alienate potential allies if advocates fail to make clear that the claim is not meant to suggest or imply that supporters of the current system are racist in the way Americans have come to understand that term. Race plays a major role—indeed, a defining role—in the current system, but not because of what is commonly understood as old-fashioned, hostile bigotry. This system of control depends far more on racial indifference (defined as a lack of compassion and caring about race and people belonging to certain racial groups) than racial hostility—a feature it actually shares with its predecessors.

Not all plantation owners supported the institution of slavery because of a sadistic desire to harm blacks; most wanted to get rich, and black slavery was the most efficient means to that end. Every plantation owner, however, was willing to use brutality and violence to force black people into servitude, and every American—whether they lived in the North or South—knew that slavery could not be maintained without terror and the deliberate infliction of pain and suffering.

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. Racial animus is a predictable and recurring feature of racial caste systems, but it is not necessary for the system to function if there is widespread racial indifference.

We now turn to another important difference between mass incarceration and Jim Crow: the direct harm to whites caused by the current caste system. Whites never had to sit at the back of the bus during Jim Crow, but today a white man may find himself in prison for a drug offense, sharing a cell with a black man.

An “interracial racial caste system” may seem like an oxymoron. What kind of racial caste system includes white people within its control? The answer: a racial caste system in the age of colorblindness.

We, as a nation, seem comfortable with 90 percent of the people arrested and convicted of drug offenses in some