the new jim crow thesis

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

2011, Contemporary Sociology: A Journal of Reviews

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

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Robert Perkinson, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Journal of American History , Volume 98, Issue 2, September 2011, Pages 595–596, https://doi.org/10.1093/jahist/jar230

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In the latter third of the twentieth century, large-scale incarceration became a defining pillar of American exceptionalism, a domestic counterpart to the country's unrivaled military establishment. With 2.3 million persons in prison, about 1 percent of the adult population, the United States manages the biggest penal system in the world, both in aggregate and per capita—the most extensive punishment apparatus ever assembled by a democratic government.

The legal scholar Michelle Alexander argues in her cogent and provocative book that there is one preeminent social formation behind the emergence of this carceral colossus: racism. Although the civil rights movement has culminated in the putatively colorblind “Age of Obama,” she contends that criminal justice institutions have coalesced into “a stunningly comprehensive and well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow” (p. 4).

The New Jim Crow is not a work of history but a searing indictment of the present that casts the past in troubling light. In step with recent work by Loïs Wacquant, Glenn Lowry, and (in full disclosure) me, Alexander shows how a punitive policy regime grew out of the ashes of segregation during the conservative recrudescence. In the same way that Jim Crow materialized in the aftermath of Reconstruction, she asserts that in the post–civil rights era, “proponents of racial hierarchy found they could install a new racial caste system without violating the law or the new limits of acceptable political discourse, by demanding ‘law and order’ rather than ‘segregation forever’” (p. 40).

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Alexander’s Overall Thesis From the New Jim Crow Research Paper

Overall thesis from the new jim crow.

In her book, The New Jim Crow, Michelle Alexander explains the challenges that people of color face in modern American society. Her overall thesis from this book is “that mass incarceration constitutes a new system of racial oppression akin to slavery and the original Jim Crow” (Alexander, 32). She argues that in the current Age of Colorblindness, the unique challenges that people of color faced during the era of Jim Crow laws still persist. The only difference is that the approach taken by people in positions of power has changed. The society is currently using the criminal justice system as a tool to oppress people of color. According to this book, there is a disproportionately high number of blacks incarcerated in various prisons across the country.

War on drugs has been an excellent excuse that law enforcement officers use to ensure that they send these minorities to prison. According to Purnell et al., it is more likely for a black to be taken to court when arrested with a small amount of bhang or marijuana than a white (37). It is also easier to convince the judge and the jury that the black man was doing drugs. In terms of sentencing, a black man is more likely to be given a severe punishment than a white man, even if they committed the same offense. The color of the skin is, therefore, used as a means of defining one’s guilt in the current criminal justice system. The main problem is that this form of discrimination has been repackaged as the war on drugs or crime (Adler 38). This strategy has worked so well that even the black community does not realize they are targeted until they become victims of police brutality and the skewed criminal justice system

Significant Cases Discussed in the New Jim Crow and Their Ramifications on Her Thesis

In this book, Alexander argues that American society has entered a new age of legalized discrimination. The language and approaches used have changed over time, but the intent and pain caused to the victims have remained the same. In her book, she has singled out specific cases that explain the era of the New Jim Crow. The following are some of the major cases.

Employment Discrimination

The majority of large corporate institutions and government agencies are owned and managed by whites. The book opines that when employers are presented with a case where they have to choose either a black or a white with similar qualifications, they are more likely to choose white. In some cases, a white would be chosen even if they had an inferior qualification to a black candidate (Austin 11). The reason given would be that the most qualified person was chosen. The truth is that the qualification was based on one’s skin color as opposed to one’s ability to undertake a specific task. Such discrimination is widespread both in the public and private sectors, and it is packaged in a unique form that fighting it has been a major challenge.

Housing Discrimination

The housing sector is another area where minorities in the United States face massive challenges. In public housing, there is open discrimination against blacks when rolling out various programs. In the final stages of approval, one’s race becomes one of the defining factors of whether an individual would be given a house. In the private sector, the problem is even worse, as Austin observes (17). Realtors would deliberately deny a black person an opportunity to buy or rent a house within a given neighborhood primarily because of their race. There is the fear that if the black is given a house in a neighborhood considered exclusively white, there might be an uproar. Some of the current customers may consider leaving the place, while prospective clients would consider buying or renting a house in other places. In an effort to protect their profits and revenue, they would deny an opportunity to live in these neighborhoods.

Denial of the Right to Vote

Alexander argues that blacks form the largest group of disenfranchised voters in the United States. According to Purnell et al., voting is one of the fundamental rights of every American citizen of the right age and of sound mind (51). However, in some parts of the country, there have been deliberate steps taken to ensure that the ability to vote is compromised as much as possible. In some cases, the legality of their voting rights would be questioned, while in other cases, systemic strategies would be used. The goal is to ensure that they do not participate in determining the political leadership of the country. When their votes do not count, it becomes easy for the policy-makers to ignore their plight.

Denial of Educational Opportunity

Education has remained the single most powerful tool for eradicating poverty and empowering the disadvantaged in the society. However, the type of school one attends would define the social networks that they develops and the skills one acquire, which would then play pivotal roles in defining their career success. Some of the best universities in this country, such as Harvard, Yale, Massachusetts Institute of Technology (MIT), Stanford University, and Columbia University, have been accused of bias when admitting students across the country. Austin explains that it is not easy for a poor black student to get admission into these institutions (36). Besides the open bias when selecting students, there is also the challenge of the cost of tuition and other charges, which further limits the ability of poor students to attend these institutions.

Denial of Food Stamps and Other Public Benefits

The United States government has various social protection programs meant to help the very poor members of society. One such program is food stamps, which is meant to ensure that no American citizen would starve (Adler 57). This program is meant for the poorest of Americans and should be issued without any form of discrimination. The problem is that government officials responsible for managing such programs are biased. It is common to find cases where food items are not made sufficiently available to those with food stamps. Such services would be rationed in areas dominated by minorities, especially African Americans (Kilgore 290). Different administrations come to power promising to solve this problem, but most often, they fail to do so.

Exclusion from Jury Service

The book also identifies another challenge with the criminal justice system in the country, which is the exclusion from jury services. It is a common practice for a judge to invite the jury to help in determining whether a suspect is guilty of a crime leveled against them. African Americans are in the best position to understand the plight that their people face and why they would act in a given manner (Austin 78). As members of the jury, they can help to explain events that led to the suspect acting in a given way. Unfortunately, they are rarely chosen to be members of the jury. As such, blacks are left in the hands and at the mercy of whites, who already have informed opinions and are keen on confirming their guilt. When they retire to discuss the case, they start from the point that the suspect is guilty and then focus on finding justifications for the same. It is almost impossible for blacks to get justice in such a system.

Ramifications of These Cases on Her Thesis

These cases, which outline specific ways in which blacks face discrimination, help to reaffirm her thesis. Adler explains that there is always a need to distinguish inflammatory, baseless claims from real challenges that need to be addressed (39). Alexander provides specific cases that can easily be traced and confirmed to explain the New Jim Crow. She makes her case believable by providing information that is already known to American society. For instance, the claim that most of the prestigious universities in the country are out of reach for poor African Americans can easily be confirmed. At Harvey Mudd College, a student is expected to pay $79,539 annually (Ryan 45). The average income in the United States is $63,214, while that of African Americans is $48,297 (Ryan 45). Even if one is willing to pay everything they earn for their child’s fee, they cannot afford it. In this case, cost has been used effectively to deny the poor an opportunity to get the best in education.

Personal Reflection on Her Overall

I agree with Alexander’s overall thesis because they can easily be confirmed. A good example is the brutal and emotive death of George Floyd in 2020. Derek Chauvin, a white police officer with the authority to arrest, deliberately knelt on George’s neck for about 9 minutes (Reny and Newman 1504). The victim’s plea that he could not breathe was ignored, and he suffocated to death. The issue was taken seriously by the government, and Derek was convicted, but many believe this was possible because the merciless murder was recorded and shared publicly. Several similar cases where law enforcement agencies use unnecessary excessive force have been witnessed in this country. The problem is that those who commit the crime are the same people who are expected to protect civilians.

I agree with the claims made by Alexander that the New Jim Crow is as effective in persecuting minorities, especially African Americans, as the old forms of discrimination. According to a report by Purnell et al., the highest population group of inmates in the country is blacks, at 33%, while whites account for 30% (34). It is important to note that the total population of blacks in the United States is only 12%, while whites account for 64% (Ryan 45). The statistics show that an African American is six times more likely to end up in prison than a white person is. The trend is worrying because the concentration of police officers in black neighborhoods is significantly higher than in white-dominated neighborhoods. As Alexander puts it, the problem of racism and systemic discrimination is still alive in the country.

Works Cited

Adler, Jeffrey. Murder in New Orleans: The Creation of Jim Crow Policing . University of Chicago Press, 2019.

Alexander, Michelle. New Jim Crow: Mass Incarceration in the Age of Colorblindness . The New Press, 2012.

Austin, Paula. Coming of Age in Jim Crow DC: Navigating the Politics of Everyday Life . New York University Press, 2019.

Kilgore, James. “Mass Incarceration: Examining and Moving Beyond the New Jim Crow.” Critical Sociology , vol. 41, no. 2, 2015, pp. 283-295.

Purnell, Brian, et al. The Strange Careers of the Jim Crow North: Segregation and Struggle Outside of the South . New York University Press, 2019.

Reny, Tyler, and Benjamin Newman. “The Opinion-Mobilizing Effect of Social Protest against Police Violence: Evidence from the 2020 George Floyd Protests.” American Political Science Review , vol. 115, no. 4, 2021, pp. 1499-1507.

Ryan, Mary. Handbook of U.S. Labor Statistics: Employment Earnings Prices Productivity and Other Labor Data 2021 . Bernan Press, 2021.

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IvyPanda. (2023, November 27). Alexander’s Overall Thesis From the New Jim Crow. https://ivypanda.com/essays/alexanders-overall-thesis-from-the-new-jim-crow/

"Alexander’s Overall Thesis From the New Jim Crow." IvyPanda , 27 Nov. 2023, ivypanda.com/essays/alexanders-overall-thesis-from-the-new-jim-crow/.

IvyPanda . (2023) 'Alexander’s Overall Thesis From the New Jim Crow'. 27 November.

IvyPanda . 2023. "Alexander’s Overall Thesis From the New Jim Crow." November 27, 2023. https://ivypanda.com/essays/alexanders-overall-thesis-from-the-new-jim-crow/.

1. IvyPanda . "Alexander’s Overall Thesis From the New Jim Crow." November 27, 2023. https://ivypanda.com/essays/alexanders-overall-thesis-from-the-new-jim-crow/.

Bibliography

IvyPanda . "Alexander’s Overall Thesis From the New Jim Crow." November 27, 2023. https://ivypanda.com/essays/alexanders-overall-thesis-from-the-new-jim-crow/.

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Ten Years After “The New Jim Crow”

By David Remnick

Sometimes a book comes along and, after it is absorbed into the culture, we cannot see ourselves again in quite the same way. Ten years ago, Michelle Alexander, a lawyer and civil-rights advocate, published “ The New Jim Crow: Mass Incarceration in the Age of Colorblindness .” This was less than two years into Barack Obama’s first term as President, a moment when you heard a lot of euphoric talk about post-racialism and “how far we’ve come.” “The New Jim Crow” was hardly an immediate best-seller, but after a couple of years it took off and seemed to be at the center of discussion about criminal-justice reform and racism in America. The book considers not only the enormity and cruelty of the American prison system but also, as Alexander writes, the way the war on drugs and the justice system have been used as a “system of control” that shatters the lives of millions of Americans—particularly young black and Hispanic men.

As part of an hour-long examination of mass incarceration for The New Yorker Radio Hour, co-hosted this week by Kai Wright, of WNYC, I caught up with Michelle Alexander, who is now teaching at Union Theological Seminary, in New York.

This conversation has been edited for length and clarity.

When “The New Jim Crow” came out, a decade ago, you said that you wrote it for “the person I was ten years ago.” Take me back to those times and to the work you were doing for the A.C.L.U. What were you finding out?

That would have been twenty years ago from today. It was just as I was beginning my work with the A.C.L.U. I was well aware that there was bias in our criminal-justice system, and that bias pervaded all of our political, social, and economic systems. That’s why I was a civil-rights lawyer: I was hoping to finish the work that had been begun by civil-rights leaders who came before me. I had a very romantic idea of what civil-rights lawyers had done and could do to address the challenges that we face.

My impression back then was that our criminal-justice system was infected with racial bias, much in the same way that all institutions in our society are infected to some degree or another with racial and gender bias. But what I didn’t understand at that time was that a new system of racial and social control had been born again in America, a system eerily reminiscent to those that we had left behind.

In fact, I was heading to work my first day at the A.C.L.U. directing the Racial Justice Project when I happened to notice a sign posted to a telephone pole that said, in bold print, “The Drug War Is the New Jim Crow.” I remember pausing for a moment and scanning the text of the flyer and seeing that a small, apparently radical group was holding a meeting at a church several blocks away. They were organizing to protest racial profiling, the drug war, the three-strikes laws, mandatory minimum sentences, and police brutality. The list went on and on. I remember thinking to myself, Yeah, the criminal-justice system is racist in a lot of ways, but it doesn’t help to make comparisons to Jim Crow. People will just think you’re crazy. And then I hopped on the bus.

So it was really as a result of myself representing victims of racial profiling and police brutality, and investigating patterns of drug-law enforcement in poor communities of color, and attempting to assist people who had been released from prison as they faced one closed door and one barrier after another to mere survival after being released from prison that I had a series of experiences that began what I have come to call my awakening.

What was that awakening like? What were you seeing in your work so that the scales were falling from your eyes?

Well, there were a number of incidents. It was partly beginning to collect data and trace patterns of policing. It was coming to see how the police were behaving in radically different ways in poor communities of color than they were in middle-class, white, or suburban communities. I mean, this wasn’t a shock to me in any way, but the scale of it was astonishing: seeing rows of black men lined up against walls being frisked and handcuffed and arrested for extremely minor crimes, like loitering, or vagrancy, or possession of tiny amounts of marijuana, and then being hauled off to jail and saddled with criminal records that authorized legal discrimination against them for the rest of their lives. I mean, witnessing it and interviewing people one after another had its impact on me.

But there was one incident in particular that really kind of rocked my world. It involved a young African-American man who was about nineteen, who walked into my office one day and forever changed the way I viewed myself as a civil-rights lawyer and the system I was up against. He walked in my office carrying a stack of papers a couple of inches thick. He had taken detailed notes of his encounters with the police over about a nine-month period: every stop, every search, every time he had been frisked or someone he was riding with had been stopped, searched, or frisked. He had names of officers, in some cases badge numbers, names of witnesses—just an extraordinary amount of documentation.

At the time, I was interviewing people for a possible class-action suit against the Oakland Police Department. We had already filed a major class-action suit against the California Highway Patrol, alleging racial profiling in their drug-interdiction program, and we had launched a major campaign against racial profiling in California, and we were looking to sue other police departments, as well. And we had set up a hotline number for people to call if they had been stopped or targeted by the police on the basis of race. Within the first few minutes of us announcing this hotline number on the evening news, we received thousands of calls, and our system crashed temporarily. So I was spending my day interviewing one young black or brown man after another who had called the hotline.

This man’s story was so compelling. I thought, Wow, maybe we have finally found our dream plaintiff. I start asking him more questions. He’s sharing more details and information. And then he said something that made me pause: Did you just say you’re a drug felon?

We had been screening people for criminal records when they called our hotline number. We would ask them a bunch of questions about their experience with the police. We sent a form for them to fill out. And one of the questions was: Have you ever been convicted of a felony? We believed we couldn’t represent anyone with a felony record because we knew that, if we did, law enforcement would be all over them, saying, Well, of course we’re keeping an eye on the criminals and stopping and harassing them. This isn’t about race. It’s about us cracking down on the criminals.

And we knew we couldn’t put someone on the stand as a named plaintiff in a class action alleging racial profiling if they had a felony record, because we'd be exposing them to cross-examination about their prior criminal history and turning it into a mini-trial about a young man’s criminal past rather than the police conduct.

So we’d been screening out people with felony records, and this young man hadn’t checked his box. I’m looking at him, saying, “O.K., you’re a drug felon. Are you telling me you’re a drug felon?” And he gets very quiet and stares down at the table and then finally looks up and says, “Yeah, yeah, I’m a drug felon. But let me tell you what happened. Police planted drugs on me, and they beat up me and my friend.” And he starts telling me this long story about how he’d been framed and drugs have been planted on him. And I just start shaking my head. I said, “I’m sorry, I can’t represent you with a felony record.” And now he’s trying to give me more details and explain more about that case. And I keep telling him, “I’m sorry, I just can’t represent you.” And he becomes more and more agitated and upset. And then, finally, he becomes enraged, and he says, “What’s to become of me? What’s to become of me?”

And he starts explaining that he’d just taken the plea because he was afraid of doing the time. They told him that if he just took the plea, you just walk out with just felony probation. And he said, “But what’s to become of me? I can’t get a job anywhere because of my felony record. Do you understand? I have to sleep in my grandma’s basement at night. I can’t even get into public housing with a drug felony. It’s, like, how am I supposed to take care of myself? How am I supposed to take care of myself as a man?” He’s, like, “I can’t even feed myself. . . . Do you know I can’t even get food stamps because of my drug felony? Good luck finding one young black man in my neighborhood they haven’t gotten to yet. They’ve gotten to us all already.”

What was so provocative about the handbill that you first saw on the telephone pole, and in what became the title of your book, is that it flew in the face of what politicians said their motivation was for things like the crime bill in the mid-nineties, during the Clinton Administration. In other words, they said they were passing this legislation because crime rates were so high and drugs were out of control. What you’re saying, what that handbill said, is no, in fact, this is the establishment of a means of social control of young black and brown men in particular. How conscious was that? How would you argue that it was a conscious decision to establish a successor, in a sense, to Jim Crow, and what came before Jim Crow?

There were mixed motives. One of the things that I laid out in the book was the history of the Southern strategy, the deliberate political strategy of divide and conquer, of using “get tough” racial appeals in order to appeal to poor and working-class whites, particularly in the South, who were fearful of and resentful of the progress that had been made by African-Americans since the civil-rights movement, who feared that they now had to compete for limited jobs in the era of deindustrialization with black folks. They were resentful of affirmative action.

Fearmongering and scapegoating was at the heart of the Southern strategy, which used racially coded and not so coded political appeals defining black and brown men in particular as the enemy, as criminals, as drug users, as superpredators, in order to appeal to poor and working-class white voters in the South and flip those blue states to red. That Southern strategy fuelled the “get tough” movement, helped to birth the war on drugs, and was in part about turning the clock back on racial progress to a time when white folks didn’t have to compete on equal terms with black and brown folks.

But it’s also the case that racial stereotypes are a result of really racist media portrayals of drug users during the crack epidemic, which created conscious as well as unconscious stereotypes in law enforcement and the public at large. This helped to fuel this notion that we should get tough on them, the racially defined Others.

So the drug war was in part a politically motivated strategy, a backlash to the civil-rights movement, but it was also a reflection of conscious and unconscious biases fuelled by media portrayals of drug users. Those racial stereotypes were resonant with the same stereotypes of slaves and folks during the Jim Crow era.

A lot of people think of mass incarceration and “get tough” policies as the result of right-wing politics. But in what ways have liberals also played a part in this history?

I view liberals as equally guilty of birthing the system of mass incarceration as right-wing conservatives. President Bill Clinton escalated the drug war that had been originally declared by President Richard Nixon and then escalated by Ronald Reagan. Clinton escalated the drug war beyond what many of his Republican predecessors ever dreamed. And he did so in part to prove that he could be tougher on them, the black criminals, than his Republican counterparts.

I think it must also be acknowledged that there were black politicians and black communities calling for tough responses to rising crime in inner-city communities that were suffering from economic collapse. But it’s important to draw a distinction between black politicians and black communities that were desperate for intervention as factories closed and disappeared, and work disappeared, as William Julius Wilson described so powerfully in his book “ When Work Disappears .” There was a period of time when hundreds of thousands of jobs vanished practically overnight in poor black communities, and they suffered depression and economic collapse. Crime rates rose and people were desperate for a meaningful, quick response.

But it would be wrong, in my view, to say that mass incarceration was supported by black communities. Black communities have organized for and demanded many large-scale interventions to address economic inequality, crime, educational inequality over the years. And it has only been in the area of crime that our nation has been willing to respond with massive investments in police, prisons, mass surveillance.

You were writing this book as Barack Obama was starting out his Presidency. Did his election make it harder for people to hear your argument at first? In fact, your book did not really take off the way it did for a little while.

Yes, that’s absolutely right. Many people think that “The New Jim Crow” was an instant best-seller.

But it took a couple of years, right?

Yes. People didn’t want to hear that we were still locked in a cycle of racial progress, backlash, retrenchment, and reformation of systems of racial and social control. It seemed much more likely that we were in an era of post-racialism, a time of color blindness, or at least on our way towards that Promised Land. I spent a couple of years on the road pretty much non-stop, speaking to small crowds and churches and groups of students and activists, really desperate to sound an alarm and to help people to see that, no, we are not free of our racial history. Our nation has, in fact, done it again. We have birthed a system of mass incarceration unlike anything the world has ever seen. Millions of people have been relegated yet again to a permanent second-class status in which they are stripped of basic civil and human rights, including the right to vote, the right to serve on juries, and the right to be free of legal discrimination in employment, housing, access to education, and public benefits. It wasn’t a message people were eager to hear, but I think it is much easier to see today, ten years later, that our nation is not yet free of its racial history, and that we continue to create new systems of racial and social control.

Decades ago, politicians were promising to build prison walls and new prisons. Today, politicians are promising border walls and the same politics of divide and conquer, fearmongering, and scapegoating that helped to give rise to the “get tough” movement, and the war on drugs is being used to fuel anger and resentment towards immigrants and mass deportation and mass detention.

While you were writing this book, your husband was working as a federal prosecutor. Did you have disagreements on the ideas that you were laying out? How did you discuss this with somebody so close to you?

My husband and I kind of came to these issues from very different perspectives. I had been working for years as a civil-rights lawyer. When we got married, he decided to become a federal prosecutor. While we both shared a commitment to racial and social justice, it was very difficult for me to accept that he was working for justice on the inside. We definitely had different disagreements over the years. But I also found him to be a very helpful reader. He has always given insightful and useful feedback on my writing and has been incredibly supportive of my work over the years, and so I’m grateful for that. I think it has been helpful in many ways for me to be challenged in my thinking by someone who has seen through the eyes of law enforcement.

There’s been no shortage of books about race and mass incarceration. Why do you think it was your book that captured the public in the way that it did, and still does?

I think the book was published at the right time. Our nation was reeling from an economic crisis that was forcing former “get tough” true believers to take a hard look at the system of mass incarceration. Former governors who had been calling for harsh mandatory minimum sentences and had been fierce drug warriors were suddenly realizing that it was not possible to continue to expand this massive prison state without raising taxes on the predominantly white middle class. And so suddenly people were beginning to ask questions and to be open to the possibility that perhaps this race to incarcerate had been misguided.

At the same time, the uprisings in Ferguson, Missouri , forced a conversation about race and our criminal-justice system that our nation had been determined to avoid for a very long time. The activism and the organizing and the passion and heartbreak that flowed from the killing of Trayvon Martin , the killing of Michael Brown , the deaths of Kalief Browder and Sandra Bland opened up a space where people began searching for answers regarding how we got to this place.

I know from your new preface to the tenth-anniversary edition that you got thousands of letters from people who wrote you about the book, many from people who were formerly incarcerated. What were they telling you?

Yeah, it has been overwhelming, over the years, to receive thousands of letters. I’m embarrassed and sad to say that I haven’t been able to read all of them. Some people have written just thanking me for the book and for speaking a truth that they may have been trying to speak in their own communities.

There’s also a lot of people writing me from prison, begging for help. Those are the most heartbreaking letters to read because, often, not only am I not able to help them but there’s no one who I can recommend who can. There is just not available legal support for people who are in prison trying to fight their charges or reduce their sentences.

In the preface you wrote for the tenth-anniversary edition, you kept coming back to this idea of “Everything and nothing has changed.” What’s changed, and what hasn’t? Are we better off now than we were a decade ago, when your book was first published?

Well, certainly, in some ways, on the surface, it appears that everything has changed. When my book was first published, President Obama had just been elected. It seemed that we were on the right path: still had a long way to go, but were headed in the right direction. At least, that was the sentiment that was shared by many, many people. It seemed as though this dream of a multiracial, multi-ethnic, egalitarian democracy was within our reach, and there was an incredible amount of hope for positive change. And yet we were also living in a time of tremendous denial.

As I wrote, a system of mass incarceration had been born in America, a system of racial and social control that turned back much of the racial progress we thought we had made, and people were unwilling to talk about it and to face it. Criminal-justice issues weren’t even really on the radar of civil-rights organizations at that time, with the exception of the A.C.L.U. and some work on racial profiling that was beginning to be done by the N.A.A.C.P. and other organizations. When the Leadership Conference on Civil Rights, in 2008, sent out a letter listing the most pressing issues on civil rights, criminal-justice issues didn’t even make the list. And when, in 2009, the Congressional Black Caucus sent out a list of a couple dozen issues that might be of concern to black communities, criminal justice didn’t make the list. This was just as the drug war was raging and the race to incarcerate was going full bore. And so there was a way in which we were asleep and in denial.

Today, that has changed. The election of President Trump has completely decimated whatever fantasies we had that we are living in a post-racial America. We now can see that systems of racial and social control are alive and well, not only due to the uprisings in Ferguson and the many, many publicized police killings of unarmed black people and the growing movements to end mass incarceration. We’ve also come to see how yet another system of racial and social control has been born in this country, the system of mass deportation and mass detention. So we have this paradox in which, on the one hand, it seems that everything has changed, yet the politics of white supremacy have remained largely unchanged during the Obama years. Now we are forced to reckon with racial realities that we had long attempted to avoid, and I think we are finally beginning to see how the politics of divide and conquer, the politics of racial scapegoating and fearmongering, have been used again and again.

Some of the scholars who have been in dialogue with you about your book have taken issue with your focus on the war on drugs and nonviolent drug offenses. John Pfaff, in his book “ Locked In ,” says that only about sixteen per cent of state prisoners are serving time on drug charges, and very few of them—maybe about five or six per cent of that group—are both low level and nonviolent. And what he and the other scholars are saying is, even if you released all the people in prisons who were there for drug offenses, nonviolent drug offenses, that would not put a real dent in the prison population.

Well, that’s absolutely right. It is true that roughly half of the people who are held in state prisons today have been convicted of offenses that are labelled violent, and that a small minority of people in prison today have been labelled drug offenders. But one of the main points of “The New Jim Crow” is that it is a profound mistake to think of the system of mass incarceration as simply a system of prisons.

There are twice as many people on probation or parole today as are locked in prisons or jails. When people think about the system of mass incarceration, they typically just think about who’s in prison at any given moment. But what I hope to draw people’s attention to is that this system of mass incarceration is actually a system of mass criminalization. It is a system that criminalizes people at very young ages, often before they’re old enough to vote. It labels them criminals and felons, and then strips them of basic civil rights, the very rights supposedly won in the civil-rights movement. And this happens even if you’ve been sentenced only to probation.

So when people look at prison statistics and say, Oh, well, most people who are in prison are there for violent offenses, so our primary concern must be violent crime, or they think, Oh, well, this prison system is really about responding to violent crime, they get it very wrong.

About five per cent of people who are arrested every year have been convicted of violent crimes or charged with violent crimes. People who have been convicted of violent offenses typically get much, much longer sentences than people who have been convicted of nonviolent crimes like drug offenses. And, therefore, they comprise a much larger portion of the prison population. However, ninety-five per cent of those who are arrested and swept into the criminal-justice system every year have been convicted of nonviolent crimes. And the largest category of arrests are drug arrests. That was true in 2010, and it’s true today.

The war on drugs has been a primary vehicle for sweeping people into a criminal-justice system, branding them criminals and felons, and then relegating them to a permanent second-class status for life. That doesn’t mean we should be unconcerned about violent crime or the harm that it does to communities, nor should we be unconcerned about the extremely long sentences and inhuman treatment that people often receive being caged. But what it does mean is that we have to stop thinking about the system of mass incarceration as simply a prison system.

Michelle, let’s talk about the cages in general. There have been calls in recent years for prison abolition. And I wonder what you make of the prison-abolition movement. I’ll ask you what Angela Davis asks in the title of her famous book from 2003, “ Are Prisons Obsolete? ”

I think prisons are absolutely obsolete. I hope that one day our nation will look back on this practice of putting human beings in literal cages, often treating them worse than we would treat a dog at the pound, sometimes locking them in solitary confinement for decades, allowing them little or no access to sunshine or human contact—I hope that one day we will look back on this practice with as much shame and horror as we view the practice of slavery, or the practice of cutting off limbs and hands of thieves. I hope that we find much more humane, constructive ways of responding to the real harms of violence and of crime than subjecting people to deliberate humiliation, stigmatization, suffering, and caging.

We can do better than this. In my experience, most folks understand that caging people and then stripping them of basic civil and human rights upon their release isn’t productive. In fact, it’s more likely to encourage criminal behavior in the future and make it more difficult for people to survive on the outside without resorting to crime. It’s likely to traumatize people in ways that will be harmful to themselves, to their families, and to their communities. Most people understand that when you talk about drug abuse or drug addiction. People understand that it is much more productive for people to get drug treatment rather than be in a cage. But when it comes to violence, people have a much more difficult time imagining that there are solutions beyond inflicting violence and caging people.

But I’m so encouraged by the work of restorative- and transformative-justice advocates today who are challenging us to think about ways of responding that are more humane and more effective, both for survivors as well as for those who have committed acts of violence.

What do you envision specifically as an alternative to cages, to prisons, to jails? Is there a place in the world that has a justice system that you can point to and say, We definitely should move toward something more like that ?

Well, there’s been a lot written in recent years about systems in Norway and Germany that are much more humane than the system of caging that we have in the United States. I would really encourage people to read Danielle Sered’s book “ Until We Reckon ,” specifically about a program that she operates in New York City called Common Justice. Common Justice is a restorative-justice program that provides alternatives to incarceration for people who have been convicted of or who are facing charges for violent offenses. And what’s interesting about what she has found in the program is that ninety per cent of survivors of violent crime, when given the option of participating in a restorative-justice program, or the opportunity to confront the person who has caused them harm and to devise a plan for that person to try to make up for what they have done in some way, choose to participate in a restorative-justice program rather than to pursue criminal charges and incarceration. This kind of flies in the face of the research that suggests that survivors of violent crime always want people locked up and the key thrown away. In fact, it turns out that survivors of violent crime and the people who have committed harm can come together in many cases, far more often than we imagine, and together develop fair solutions for responding to the harm that’s been caused.

One of the things that is standing in the way of such reform is the fact that a huge number of prisons—seventy per cent, in fact—are located in rural communities and go a long way in bolstering the economies of these communities. I mean, the fact is that prisons are a big source of income for many people living around them. And you make this very clear.

The profit motive is significant. And very often people think about the profit motive simply in terms of private prisons making money off of caging human beings. However, as the book “ Prison Profiteers ,” edited by Tara Herivel and Paul Wright, points out, there is a very large range of corporate interests that make an enormous amount of money off of our prison system—everything from private health-care providers to Taser-gun manufacturers to companies that are now creating these electronic monitors, G.P.S. tracking systems for people when they are released from prison or jail.

E-carceration, you call it.

Yes. One of the things that worries me most today is the emergence of e-carceration, or digital prisons, as some activists refer to them. Many people are now being forced to wear electronic monitors, G.P.S. tracking devices, upon release from prisons and jails. These devices will limit people’s range of movement, confining them to their homes or to their neighborhoods, sometimes making it impossible for them to go to work or pick up their children from school. These tracking devices send off alarms to police departments if people travel out of their designated zones. In many ways, these tracking devices are creating entire neighborhoods that are under a kind of lockdown, as an electronically enforced kind of virtual concentration camp, where large percentages of the population are confined to small areas.

But what do you say to people who argue that these technological solutions are more humane than prisons and jails?

Well, certainly, most people, myself included, would rather have an electronic monitor, a G.P.S. tracking device, attached to my ankle than to be sitting in a literal cage. However, I find it very difficult to call a system of e-carceration and the emergence of digital prisons progress. Progress would be decriminalizing our communities, not subjecting them to new, high-tech forms of surveillance and control.

It is entirely possible that, in the years to come, as private corporations begin investing more and more money—billions of dollars are now being invested in the electronic surveillance of people who have been criminalized—that we will have entire communities and neighborhoods that are trapped in digital prisons. It will be cheaper to surveil and control millions of people electronically than through old-fashioned brick-and-mortar prisons.

So I don’t think we should celebrate the rise of electronic monitoring as a step in the right direction or progress. A step in the right direction would be massive investments in education, drug treatment, health care, and job creation, in trauma support in the communities that have been devastated by the war on drugs and mass incarceration.

We all know that the safest communities are not the ones that have the most police, the most prisons, or the highest percentage of people on electronic monitors under constant surveillance and control. No, what creates safety in our communities are good schools, plentiful jobs, quality health care, and a thriving social fabric.

The racial disparities in prisons over the last decade have actually declined. Is there any reason for hope in that?

It’s absolutely a positive development that racial disparities have declined to the extent that it means that we are relying less and less on criminalization and incarceration of all people, including people of color.

I worry about those who focus primarily on racial disparities in our criminal-justice system as a measure of injustice. In fact, there is some research that suggests that racial disparities have narrowed in part because more white people have been incarcerated or saddled with criminal records as a result of the opioid epidemic , or because, as some people have argued, many Latinos are being mislabelled as white in our criminal-justice system, distorting the data. But I wouldn’t celebrate that kind of progress. The goal here is not to subject people of all colors to unnecessary suffering. The goal ought to be to view and treat all people of all colors with dignity, humanity, compassion, and concern.

However, there is also significant evidence indicating that racial disparities have narrowed in large part because many states, New York included, have moved away from many of the harsh drug-war policies that resulted in enormous racial disparities in incarceration and conviction rates. And that is cause for celebration.

I think, again, we have to make sure that we’re not simply addressing symptoms rather than underlying causes. True progress depends on us caring and demonstrating care, compassion, and concern for poor people, and people of color, and being willing to invest in their well-being and their health and their education and their thriving rather than simply in their punishment and in their control.

All the front-runner candidates for the Democratic nomination support some form or another of criminal-justice reform. Do you have a favorite among them?

No, I am not endorsing anyone at this time.

But, on this issue, is there anybody who seems particularly advanced or to your liking?

Well, I would have to say that I have found Elizabeth Warren ’s and Bernie Sanders ’s criminal-justice platforms to be very encouraging. They’re taking a comprehensive approach to criminal-justice reform and not simply tinkering with the machine by promising to reduce sentencing, for example. Meaningful criminal-justice reform requires taking a very holistic view and insuring that people who are released from prison have meaningful opportunities for education and access to health care and drug treatment and mental-health treatment and support, and that there is a strong commitment to taking the profit motive out of incarceration entirely. And, you know, viewing criminal-justice reform through a racial-justice lens. So I am encouraged that virtually all of the Democratic candidates have stated a willingness to embrace criminal justice-reform to some degree. But for me, personally, I’m less interested in the reform of our criminal-justice system than its transformation. I think we must reimagine the meaning of justice in America, not simply reform our existing criminal-justice institutions. I think that work depends on building and organizing and the engagement of our communities. We can’t simply look to our politicians to have the answers

Finally, I hope you don’t mind if I ask you what seems to be a personal professional question. Your main teaching post has been at an institution that has religion and faith at its center, the Union Theological Seminary. Does that choice represent a change in your thinking on criminal justice or in your own life?

After spending many years working as a civil-rights lawyer and then as a legal, academic, and policy advocate, I became frustrated with the very narrow scope of acceptable discourse in those spaces. As I see it, the crisis of mass incarceration is not simply a legal or political problem to be solved, but it’s a profound spiritual and moral crisis, as well. And it requires a reckoning, individually and collectively, with our racial history, our racial present, and our racial future. Many academics and lawyers are reluctant to face or engage in this reckoning, in part because it seems so big, so overwhelming. Lawyers are accustomed to defining problems in legal terms so that they can solve them. Academics want to study problems. Legal academics want to study problems in a very narrow and often data-driven way, without really asking the deeper questions around, Who are we in relationship to one another? What does justice mean?

And I have found, much to my surprise, that, in progressive seminaries like Union Theological Seminary, there is or there seems to be much greater enthusiasm for wrestling with those deep moral questions of the meaning of justice in a nation forged through genocide and slavery, a multiracial, multiethnic nation that is struggling to overcome its racial history. What does it mean to do justice in this context, in this moment in time?

And I jokingly, although it’s not so much of a joke, tell people who just say to me, “I want to go to law school,” I say, “Well, law school is a place where you learn the rules of the game and how to play it. But it isn’t a place where people think deeply about justice. And I can’t say that’s true for every law school, but it’s true for too many of them. And I’m just grateful that I’ve had the opportunity to be affiliated with Union Theological Seminary, which has such a long history of taking questions of justice very seriously and approaching them not just from a legal or political perspective but from a deeply moral one.

Does this mean that religion and faith-based traditions have become more in the center of your thinking and research and writing and your own personal evolution?

Yes, absolutely, although I don’t consider myself a religious person. I’m probably more of a spiritual but not religious person. But, yeah, I think, ultimately, these questions are about: What does it mean to be in the right relationship to one another? Who belongs in a community, in a nation? How should we treat the least advantaged? What do we owe to one another? How do we repair harm? What does it mean to face irreparable harm in a constructive and responsible way?

Are these questions at the center of a next book?

Yes, they are. I’m working on a book that is very different from “The New Jim Crow.” It’s much more personal, and it’s about my journey going from a liberal civil-rights lawyer who was tinkering with the machine, and believed that we could somehow get to the Promised Land if we just filed the next best lawsuit, or met with the governor, or organize the right number of people for the next protest, to someone who now believes that much more revolutionary change is required, and it’s not simply a political revolution. A moral and spiritual revolution is also required of us now.

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The New Jim Crow: Mass Incarceration in the Age of Colorblindness Hardcover – January 5, 2010

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In this incisive critique, former litigator-turned-legal-scholar Michelle Alexander provocatively argues that we have not ended racial caste in America: we have simply redesigned it. Alexander shows that, by targeting black men and decimating communities of color, the U.S. criminal justice system functions as a contemporary system of racial control, even as it formally adheres to the principle of color blindness. The New Jim Crow challenges the civil rights community--and all of us--to place mass incarceration at the forefront of a new movement for racial justice in America.

• Print length 290 pages
• Language English
• Publisher The New Press
• Publication date January 5, 2010
• Dimensions 6.5 x 1 x 9.5 inches
• ISBN-10 1595581030
• ISBN-13 978-1595581037
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• Publisher ‏ : ‎ The New Press; 1st edition (January 5, 2010)
• Language ‏ : ‎ English
• Hardcover ‏ : ‎ 290 pages
• ISBN-10 ‏ : ‎ 1595581030
• ISBN-13 ‏ : ‎ 978-1595581037
• Item Weight ‏ : ‎ 1.28 pounds
• Dimensions ‏ : ‎ 6.5 x 1 x 9.5 inches
• #769 in Civil Rights & Liberties (Books)
• #1,943 in Criminology (Books)
• #2,262 in African American Demographic Studies (Books)

About the author

Michelle alexander.

A longtime civil rights advocate and litigator, Michelle Alexander won a 2005 Soros Justice Fellowship and now holds a joint appointment at the Moritz College of Law and the Kirwan Institute for the Study of Race and Ethnicity at Ohio State University. Alexander served for several years as the director of the Racial Justice Project at the ACLU of Northern California, which spearheaded the national campaign against racial profiling. At the beginning of her career she served as a law clerk on the United States Supreme Court for Justice Harry Blackmun. She lives outside Columbus, Ohio.

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The New Jim Crow

Michelle alexander, ask litcharts ai: the answer to your questions.

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Ramapo College of New Jersey Home Page » Academics » SSHS » Ramapo Journal of Law & Society » Thesis » The War on Drugs and Jim Crow’s the Most Wanted: A Social and Historical Look at Mass Incarceration

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The War on Drugs and Jim Crow’s the Most Wanted: A Social and Historical Look at Mass Incarceration

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( PDF ) ( DOC ) (JPG) June 15, 2017

JOHN DEREK STERN [1]

“The legal battle against segregation is won, but the community battle goes on.” -Dorothy Day, 1956.

The 1960s mark a significant historical period, spurred by the Civil Rights Movement and the enactment of the Civil Rights Act in 1964. It ended the infamous Jim Crow era laws, guaranteeing voting rights, interracial marriage, desegregation of schools, etc. to name a few. However, despite the progress made through the enactment of the Civil Rights Act, the promise of equal opportunity remains far from realized. Race-based discrimination has continued through public policies, albeit in more complex ways.

The War on Drugs is one instance of public policy that reveals systemic racism in our society. The implementation of the policy specifically targeted African American communities for possession of drugs leading to imprisonment of a large number of people from minority backgrounds. Michelle Alexander argues that the War on Drugs is representative of a nationwide Jim Crow epidemic that has specifically singled out African Americans, diminishing their rights as citizens (Alexander, 2014). Even though the practice is against the Fourth and Eighth Amendments of our Constitution, its continuation suggests a continuation of Jim Crow era laws, albeit in more complex ways. Mass incarceration, carried on through the War on Drugs, has severe collateral damage on minority communities as well. It is largely responsible for the devastation of urban communities, the rise of the super ghettos in cities across the country, and the institutionalization of a prison industrial complex. This essay examines the patterns of systemic racism perpetrated through the War on Drugs and mass incarceration policies. Following Michelle Alexander’s argument, I argue that the War on Drugs is not only a new form of Jim Crow era discrimination, but also responsible for systemic racism in our criminal justice system perpetrated through the institutionalization of a prison industrial complex.

Prisons: the historical context

The institutionalization of prison systems in the US begun in the eighteenth century, especially after Jeremy Bentham’s panopticon design, which enabled detaining a large number of prisoners. While the panopticon model allowed the imprisonment of a vast number of people, the end of slavery after the Civil War and the need for free labor provided the rationale for the prison system, leading to the institutionalization of a prison industrial system in the country.

Early accounts of crime and punishment in the country show that corporal punishment was the preferred form of retribution, and imprisonment was limited to minor crimes like debt. Legal historian Harry Elmer Barnes accounts that crime, as per the Act of 1788, included treason and felonies:

The Act of 1788 for ‘punishing Treasons and Felonies, and for the better regulating of proceedings in cases of Felony,’ there were sixteen capital crimes enumerated on the statute books-treason, murder, rape, buggery, burglary, robbery of a church, breaking and entry, robbery of person, robbery and intimidation in dwelling houses, arson, malicious maiming, forgery, counterfeiting, theft of chose in action, second offense for other felonies, and aiding and abetting any of the above crimes (Barnes, 1921, p. 39).

The crimes listed here are (for the most part) similar to what society deems as deviant in our present times, although possession of drugs or narcotics was not a crime under the Act of 1788.

The important difference between committing a crime in 1788 in opposition to today is the degree of punishment. Sending violators to the gallows was very common in the early years. In cases where the perpetrator’s death sentence was not issued, Barnes (1921) explains:

Corporal punishment of another and less severe type was employed. The stocks, pillory, whipping, branding and the ducking-stool were the normal methods used for imposing punishment. For the lesser offenses fines were prescribed, with an alternate sentence of corporal punishment if the fine was not paid. … Imprisonment was rarely employed as a method of punishment. Nearly all who were imprisoned for any considerable period of time were debtors, imprisonment for debt not having been abolished in New York State until the laws of April 7, 1819, and April 26, 1831, were passed, the latter in part as a result of the campaign against imprisonment for debt carried on by Louis Dwight of the Boston Prison Discipline Society (p. 39).

By the late 18 th century, imprisonment with hard labor gained acceptance over death penalty, and was adopted in the penal system reforms. The Howard League for Penal Reform explains:

Although the 18 th century has been characterized as the era of the ‘Bloody Code’ there was growing opposition to the death penalty for all but the most serious crimes… By the mid-18 th century imprisonment, with hard labor, was beginning to be seen as a suitable sanction for petty offenders (Howard League, p. 1).

Imprisonment gained legitimacy as a more civilized form of punishment, but it was mostly a form of labor camp. Those found guilty of small crimes were assigned to hard labor during the day, and at night they were held in a detention ship with appalling living conditions.

While the eighteenth-century reforms set the beginning of a process, it was Jeremy Bentham’s design of the ‘panopticon’ that institutionalized the notion of prison. Early prison designs were poorly constructed, which made it impractical to detain large number of prisoners. The Howard League for Penal Reform explains that in 1791 “Bentham designed the ‘panopticon’. This prison design allowed a centrally placed observer to survey all the inmates, as prison wings radiated out from this central position. Bentham’s ‘panopticon’ became the model for prison building for the next half century (Howard League, p. 1). This singular innovation was the first brick laid in regards to mass incarceration, as it allowed the states to imprison on a large scale and became an essential piece to the foundation of many prisons.

Furthermore, the end of Civil War and the victory of the Union created a new demand for labor as slavery was abolished. While on the one hand African Americans were promised freedom from slavery by the Thirteenth Amendment, on the other, through a prison system a new form of bonded labor was instituted. Kim Gilmore argues that the system of slavery, the Thirteenth Amendment, and the penal systems have a symbiotic relationship, responsible for the legitimation of mass incarceration:

Built into the 13th Amendment was state authorization to use prison labor as a bridge between slavery and paid work. Slavery was abolished ‘except as a punishment for crime.’ This stipulation provided the intellectual and legal mechanisms to enable the state to use ‘unfree’ labor by leasing prisoners to local businesses and corporations desperate to rebuild the South’s infrastructure. During this period, white ‘Redeemers’ — white planters, small farmers, and political leaders — set out to rebuild the pre-emancipation racial order by enacting laws that restricted black access to political representation and by creating Black Codes that, among other things, increased the penalties for crimes such as vagrancy, loitering, and public drunkenness (Gilmore, p. 1).

Although slavery was illegal, southern states empowered by the 13 th Amendment instituted the Black Codes, which would eventually become the infamous Jim Crow Laws. Black Codes and Jim Crow laws increased the severity of petty crimes, and acts such as loitering or jaywalking resulted in imprisonment. A majority of newly freed African Americans found themselves in prison, and back on the plantations. The criticism from labor unions restricted the use of prison labor to state use system only. Gilmore elucidates:

Labor unions, which had always been skeptical about prison labor, aggressively lobbied against the leasing of convicts to private corporations. Throughout the Depression years, unionists made it clear that an expanded use of prison labor would further imperil an already overfull work force and intervene in “free markets” in ways that threatened the stability of capitalism and laid bare its most excessive failures. Slowly, prisons and jails solved this problem by developing a ‘state-use’ system in which prison labor was used solely for state projects. This solution eliminated the competition between convict labor and union labor, while still enabling convicts to offset their cost to the state (Gilmore, p. 1).

By the mid 1900s, the use of convict labor for state projects was well established, and a number of private prisons were instituted to manage the prison population.

The Civil Rights Act dismantled Jim Crow laws but the use of convict labor remained. The War on Drugs policy, enacted in 1971 by President Nixon, supplanted Jim Crow laws with new measures to incarcerate populations for possession of drugs. While the law did not explicitly target communities, the enforcement of the law disproportionately burdened African American communities. Like post-Civil War Black Codes and Jim Crow laws, the War on Drugs was the next platform to repeat the cycle of incarcerating African Americans. However, this time around it was not exclusive to the South but throughout the entire United States.

The War on Drugs

In June of 1971, President Nixon declared War on Drugs, to classify and regulate the use of drugs and other substances. This policy, as Drug Policy Alliance notes, “increased the size and presence of federal drug control agencies, and pushed through measures such as mandatory sentencing and no-knock warrants” (DPA). In 1970, after Nixon’s declared War on Drugs, the Comprehensive Drug Abuse Prevention and Control Act (CDAPC) was enacted to create a list of scheduled drugs. The Act included marijuana in the list of Schedule I drugs, with heroin and LSD. This led to a process of criminalizing marijuana use despite recommendations of a high-level committee to decriminalize the possession and distribution of marijuana for personal use (DPA, p. 1). Marijuana accounts for hundreds of thousands of arrests each year. The listing of marijuana as a Schedule I drug is a clear example of the intention of the federal government to make sure popular drugs carry the most severe penalties.

Although President Nixon instituted the policy, President Reagan expanded the reach of the War on Drugs, leading to “skyrocketing rates of incarceration…The number of people behind bars for nonviolent drug law offenses increased from 50,000 in 1980 to over 400,000 by 1997” (DPA, p. 1). The enactment of the Anti-Drug Abuse Act of 1986 introduced a mandatory minimum sentence punishment for possession and use of controlled substances. Jail sentences varied from 5-10 years based on the drug and amount in possession (PBS, p.1). The idea behind mandatory minimum sentences was to encourage the government to prosecute high-level drug offenders. However, the amounts that triggered a substantial sentence were often lower than those high-level drug trafficking (PBS, p. 1).

This policy spiraled the prison population during the 1980s, and prison beds were filled up for minor offenses. Additionally, laws such as California’s three strikes law amplified the process. In fact,

the law imposed a life sentence for almost any crime, no matter how minor, if the defendant had two prior convictions for crimes defined as serious or violent by the California Penal Code. According to official ballot materials promoting the original Three Strikes law, the sentencing scheme was intended to ‘keep murders, rapists, and child molesters behind bars, where they belong.’ However, today, more than half of inmates sentenced under the law are serving sentences for nonviolent crimes (Stanford, p. 1).

The three strikes law sentenced people for victimless drug crimes, and in a two-decade span, millions of people have been incarcerated. The data from the Stanford Three Strikes Project shows that more minorities were targeted and charged with small crimes, and these often added up to three total charges, sentencing them to life in prison. Through public pressure, and the passing of Proposition 36, the three strikes law has been struck down. In the first eight months after the enactment of Proposition 36, over 1,000 prisoners were released from custody. Of the inmates released, the recidivism rate stands at less than 2 percent, a number well below state and national averages (Stanford, p. 1).

The law imposed a life sentence for almost any crime, no matter how minor, if the defendant had two prior convictions for crimes defined as serious or violent by the California Penal Code. According to official ballot materials promoting the original three strikes law, the sentencing scheme was intended to ‘keep murders, rapists, and child molesters behind bars, where they belong.’ However, today, more than half of inmates sentenced under the law are serving sentences for nonviolent crimes (Stanford, p. 1).

The War on Drugs’ only purpose is to control and imprison, not protect. Policies that have given support to the War on Drugs are detrimental to society, and only provided a new system of fueling private prisons with inmates in the post-Jim Crow era. The War on Drugs increased federal prison population exponentially, by almost 790-percent, according to the ACLU. Fareed Zakaria explains:

Mass incarceration on a scale almost unexampled in human history is a fundamental fact of our country today,’ writes the New Yorker’s Adam Gopnik. ‘Overall, there are now more people under ‘correctional supervision’ in America–more than 6 million–than were in the Gulag Archipelago under Stalin at its height…’ So something has happened in the past 30 years to push millions of Americans into prison. That something, of course, is the War on Drugs. Drug convictions went from 15 inmates per 100,000 adults in 1980 to 148 in 1996, an almost tenfold increase. More than half of America’s federal inmates today are in prison on drug convictions. In 2009 alone, 1.66 million Americans were arrested on drug charges, more than were arrested on assault or larceny charges. And 4 of 5 of those arrests were simply for possession (Zakaria, 2012. p, 1).

Further, as ACLU data shows, a black man “is 3.73 times more likely to be arrested for marijuana possession than a white person is, despite approximately equal rates of drug use.” Additionally, NAACP data demonstrates African Americans constituted “nearly 1 million of the total 2.3 million incarcerated population… incarcerated at nearly six times the rate of whites.” The model of using prison as a means to suppress African Americans is an old algorithm used post-Civil War. The new model may look different and not be discriminatory on the surface, but accomplishes the same goal.

The prison industrial complex and mass incarceration

Incarceration as the method to regulate drug use radically changed the prison culture in our society, institutionalizing a prison industrial complex. Rachel Herzing of Public Research Associates defines the prison industrial complex as “the overlapping interests of government and industry that use surveillance, policing, and imprisonment as solutions to what are, in actuality, economic, social, and political ‘problems’” (Herzing, p. 1). Private prisons are a stark example of this partnership between government and industry. The increase in incarceration rates resulted in a new demand for more facilities, which spurred the growth of private prisons, leading to institutionalization of an entire for-profit supply chain, from building prison infrastructure to providing food for inmates to day-to-day management.

The prison industrial complex has its origin in the Rockefeller drug laws. Brian Mann argues that there is link between the War on Drugs and the Rockefeller drug laws of the 1970s, named after their champion, Gov. Nelson Rockefeller, which put even low-level criminals behind bars for decades. “Those tough-on-crime policies became the new normal across the country” (Mann, 2013, p. 1). The system of addressing possession and use of narcotic drugs through the penal system led to the social acceptance of “get tough on crime” philosophy. It was widely believed that longer prison systems would discourage individuals from using drugs. This social perception legitimized the War on Drugs and the institutionalization of private prisons.

In addition, this process of criminalization of drugs, where “entire groups of people of particular social circumstances… (were) targeted by law enforcement for surveillance, punishment, and control” (Herzing, p. 1), was a tool to subjugate lower class citizens, in particular African Americans. Michelle Alexander, in her path-breaking work The New Jim Crow, compares criminalization of drugs with Jim Crow laws. For instance, she argues that systems of segregation such as denial of voting rights present during Jim Crow were perpetuated through the War on Drugs. She argues that “an extraordinary percentage of black men in the United States are legally barred from voting today” due to an unfair criminal justice system that has mass imprisoned and classified an incredible number of African Americans as felons for victimless drug charges (Alexander, 2010, p. 1). “Once you’re labeled a felon, the old forms of discrimination- employment discrimination, housing discrimination, denial of the rights to vote, denial of educational opportunity, denial of food stamps and other public benefits and exclusion from jury service- are suddenly legal… we have not ended racial caste in America; we have merely redesigned it” (Alexander, 2010, p. 2). While the Civil Rights Act aimed to bring in racial equality, it failed to address racial prejudice.

For over two centuries racial biases have been entrenched in law. The country was formed under slavery, when African Americans were considered to be “three- fifths of a man, not a real, whole human being” (Alexander, 2010, p. 26). Following the abolition of slavery, the suppression of African Americans continued through Jim Crow laws. The Civil Rights Act formally dismantled the Jim Crow system of discrimination in the public sphere- public accommodation, employment, voting, education, and federally financed activities. The Supreme Court in Heart of Atlanta Motel v. U.S . (1964) upheld the civic rights of African Americans under the Commerce Clause . Yet, as Alexander argues, the patterns of discrimination continued even after the enactment of the Civil Rights Act. She explains that after the dismantlement of Jim Crow laws,

conservative whites began, once again, to search for a new racial order that would conform to the needs and constraints of time. This process took place with the understanding that whatever the new order would be, it would have to be formally race- neutral- it could not involve explicit or clearly intentional race discrimination. A similar phenomenon had followed slavery and Reconstruction, as white elites struggled to define a new racial order with the understanding that whatever the new order could be, it could not include slavery. Jim Crow eventually replaced slavery, but now it too had died, and it was unclear what might take its place. Barred by law from invoking race explicitly, those committed to racial hierarchy were forced to search for new means of achieving their goals according to the new rules of American Democracy (Alexander, 2010, p. 40).

The War on Drugs provided the new platform to discriminate against African Americans without officially banning their rights through written laws like in the Jim Crow era. Thus, racism did not end but was rather re- embodied through another outlet. The War on Drugs “could finally justify an all-out war on [an] ‘enemy’ that had been racially defined years before” (Alexander, 2010, p.52). The War on Drugs became a chief medium through which private prisons were filled through disproportionate targeting of African Americans. For instance, despite a US Sentencing Commission report that found racial bias in the sentencing of African Americans on crack and cocaine charges, Congress dismissed the review of the process. Additionally, the inability to challenge discriminatory practices in the Court further legitimized the process. “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, mass incarceration is now off limits to challenges on the grounds of racial bias” (Alexander, 2010, p. 194).

A good example showing the Supreme Court’s reluctance to address race issues is the landmark case McCleskey v. Kemp (1987) . In 1978, the petitioner, a black man, was convicted in a Georgia trial court of armed robbery and murder, arising from the killing of a white police officer during the robbery of a store. An all-white jury recommended the death penalty on the murder charge. The trial court followed the recommendation, and the Georgia Supreme Court affirmed. The petitioner sought habeas corpus relief in Federal District Court. His petition included a claim that the Georgia capital sentencing process was administered in a racially discriminatory manner in violation of the Eighth and Fourteenth Amendments. The statistical data provided by McCleskey showed a bias towards jurors to sentence African Americans to death compared to whites, clearly showing that in the over 2,000 murder cases that occurred in Georgia during the 1970s black defendants who killed white victims had the greatest likelihood of receiving the death penalty (Justia).

However, the Court rejected the petitioner’s claims by stating that statistics were insufficient to demonstrate unconstitutional discrimination under the Fourteenth Amendment or to show irrationality, arbitrariness, and capriciousness under the Eighth Amendment. This particularly shows that proving racial discrimination is difficult in the court system, as many times discrimination is not a cause and effect relationship, but rather a correlation based on the question of disproportionate burden.

The prison industrial system, surveillance, and racial bias

The system of filling of prisons through criminalization of drugs has evolved hand in hand with a surveillance system. Since the landmark Terry v. Ohio case of 1968, the Court has substantially expanded police power to search and seize, limiting the right to privacy of individuals.

Prior to 1968, “it was generally understood that the police could not stop and search someone without a warrant unless there was a probable cause to believe that the individual was engaged in criminal activity… a basic Fourth Amendment principle” (Alexander, 2010, p. 63). Terry expanded the notion of warrantless search to include suspicious behavior as a preventive measure. In this case, which challenged the arrest of three men in front of a jewelry store without probable cause, the Supreme Court affirmed that police officers could interrogate and frisk suspicious individuals without probable cause for an arrest, providing police officers can articulate a reasonable basis for the stop and frisk. When an officer of the law has the ability to confront an individual merely based on whatever he believes constitutes suspicion, it leaves society vulnerable. When the means to justify a warrantless search are endless, it creates a less free society. For instance, the Terry rule was used to target African Americans for sporting flat brim hats and hooded sweatshirts. Although the objective of Terry v. Ohio was to prevent serious crime, it has implications beyond this case as it radically expanded police authority to investigate crimes where there is a reasonable basis for suspicion (ACLU, p. 1 ).

Terry v. Ohio was the stepping-stone towards a diminished right of privacy and enabled the establishment of a surveillance system. In later cases such as Whren v. United States (1996), the Court further limited the privacy rights of individuals against warrantless searches and seizure in the Fourth Amendment by allowing law enforcement the ability to stop a person in a motor vehicle based on pretext. As Professor Alexander claims, the pretext of a “traffic stop (was) motivated not by any desire to enforce traffic laws, but instead motivated by a desire to hunt for drugs in the absence of any evidence of illegal drug activity… pretext stops… have received the Supreme Court’s unequivocal blessing” (Alexander, 2010, p. 67).

She explains the greater implication of Whren is that diminished rights and mass incarceration gained legal recognition. Alexander notes that in Whren , specifically:

Although the officers weren’t really interested in the traffic violation, they stopped the pair anyway because they had a ‘hunch’ they might be drug criminals… according to the officers the driver has a bag of cocaine in his lap… On appeal, Whren and Brown challenged their convictions on the ground that pretextual stops violate the Fourth Amendment. They argued that because of the multitude of applicable traffic and equipment regulations, and difficulty of obeying all traffic rules perfectly at all times, the police will nearly always have an excuse to stop someone ..… Allowing the police to use minor traffic violations as a pretext for baseless drug investigations would permit them to single out anyone for drug investigation without any evidence… that kind of arbitrary police conduct is precisely what the Fourth Amendment was intended to prohibit. The Supreme Court rejected their argument (Alexander, 2010, pp. 67-68).

Together Terry v. Ohio and Whren v United States paved the path of warrantless searches that led to increase in police surveillance and mass incarceration. With no privacy from searches on foot or in a vehicle, and “with no requirement that any evidence of drug activity actually be present before launching a drug investigation police officers… judgment… would be influenced by… racial stereotypes” (Alexander, 2010, p.108). Together, the War on Drugs and expanded police power to stop and frisk built a perfect machine to mass target and incarcerate. Law enforcement stopped individuals based on previous bias or profiling and justified that action through various pathways like a routine traffic stop.

Additionally, Illinois v. Caballes (2005) shows the extent to which the surveillance power of police has been expanded. In this case, Roy Caballes was stopped for speeding by a state trooper in Illinois. During the stop, the trooper noticed an Atlas, an air freshener, and some suits in the car. He asked Caballes for permission to search the car and was denied. A second trooper arrived at the scene with a drug-sniffing dog. While walking around the car, the dog alerted the trooper to the presence of drugs. The first trooper searched the car and found marijuana in the trunk. Caballes was arrested, tried, and convicted of a narcotics offense. The Illinois Supreme Court reversed the trial court’s decision, arguing that use of the dog “unjustifiably enlarge[ed] the scope of a routine traffic stop into a drug investigation.” The state of Illinois appealed to the U.S. Supreme Court… [which found] a dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment (ABA, p. 1).

The jurisprudence on search and seizure clearly demonstrates a shift in law from protection of constitutional rights to privacy to legitimizing surveillance through stop and frisk as a justified means to conduct a search. Terry and Whren chipped away at the Fourth Amendment’s protection from warrantless search and seizure, which is inherently a right to privacy. Furthermore, in the 2002 case Lockyer v. Andrade the Court upheld the constitutionality of mandatory sentencing laws. In Lockyer v. Andrade, t he jury found Andrade guilty and then found that he had three prior convictions that qualified as serious or violent felonies under the three strikes regime. Because each of his petty theft convictions triggered a separate application of the three strikes law, the judge sentenced him to two consecutive terms of 25 years to life.

Andrade appealed his conviction, which was overturned by the Ninth Circuit. The Supreme Court found that the Ninth Circuit was incorrect and Andrade’s double life sentence was not in violation of the Eighth Amendment’s cruel or unusual clause. The Supreme Court could have dismantled California’s three strike law. Many would argue that two 25 years to life sentences for petty theft seems quite cruel and unusual. Upholding mandatory sentencing laws as constitutional has also added to mass incarceration. Alexander explains that “mandatory sentencing laws are frequently justified as necessary to keep ‘violent criminals’ off the streets, yet those penalties are imposed most often against drug offenders and those who are guilty of nonviolent crime” (Alexander, 2010, p. 91). Although Andrade did not commit a drug crime, the decision to uphold mandatory sentencing laws has allowed the incarceration of individuals to long sentences for drug and non-drug related offenses.

The most recent case that comments on the Fourth Amendment is Rodriguez v. United States, decided on April 21st, 2015. It reversed the precedent that was set in the case discussed above, Illinois v. Caballes. In Caballes, the court legalized the use of drug-sniffing dogs for routine traffic stops. Justice Ginsburg delivered the majority opinion:

This case presents the question whether the Fourth Amendment tolerates a dog sniff conducted after completion of a traffic stop. We hold that a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures. A seizure justified only by a police-observed traffic violation, therefore, ‘become[s] unlawful if it is prolonged beyond the time reasonably required to complete th[e] mission’ of issuing a ticket for the violation.

Ginsburg’s explanation is vintage Fourth Amendment protection of privacy against illegal search and seizure. Because waiting for a drug-sniffing dog surpasses the usual time for a routine police stop, it falls under the unreasonable clause of the Fourth Amendment. This decision is the first in decades to put some sort of limit on police and unreasonable searches, but there are still some questions that are left unanswered. How long is too long in regards to what’s considered a reasonable time limit on a traffic stop? Regardless of the time restraint, Rodriguez can be viewed as a win towards resurrecting the power of the Fourth Amendment and it will remain to be seen how the Court rules from this point forward.

Since the beginning of the War on Drugs, the Court has dwindled the Fourth Amendment to coincide with an over empowering police force. As the Fourth Amendment protection from illegal search and seizure dwindled, it allowed for more arrests to be made as the Court legitimized policies that condone no knock warrants. The diminished right has opened the door for police officers to invade people’s property, whether that is in a vehicle or somebody’s backpack on the street, with the aim to find drugs to make an arrest. This transgression has opened the door to mass incarceration.

Further, the pattern of arrests in stop and frisk cases also demonstrates that police arrests are led by profiling of individuals based on race and ethnicity. NYPD’s stop and frisk policy is a case in point about expansive surveillance power of police and racial bias. The policy, modeled after Wilson and Kelling’s broken windows theory on redirecting policing to address disorder in society as a preventive measure, targeted African Americans and Latinos. The NYPD’s own reports on its stop-and-frisk activity confirm what many people in communities of color across the city have long known: the police are stopping hundreds of thousands of law abiding New Yorkers every year, and the vast majority are black and Latino (NYCLU, p. 1). The NYCLU report found that “from 2002 to 2011 black and Latino residents made up close to 90 percent of people stopped, and about 88 percent of stops – more than 3.8 million – were of innocent New Yorkers. Even in neighborhoods that are predominantly white, black and Latino New Yorkers face the disproportionate brunt” (NYCLU, p. 1).

You tube videos posted by anonymous bystanders and victims’ stories corroborate the data on NYPS’s unconstitutional practices. In a letter to the New York Times, titled “Why Is the N.Y.P.D. After Me?,” Nicholas K. Peart, a victim of stop and frisk procedures, recalled his experience: “When I was 14, my mother told me not to panic if a police officer stopped me. And she cautioned me to carry ID and never run away from the police or I could be shot. In the nine years since my mother gave me this advice, I have had numerous occasions to consider her wisdom” (Peart, 2011, p. 1). In his letter, Peart included an instance of how a police officer pulled a gun on him, on his 18th birthday at 96th Street and Amsterdam Avenue in Manhattan, even as he was just sitting on a chair by the street. He writes that the experiences

changed the way I felt about the police. After the third incident I worried when police cars drove by; I was afraid I would be stopped and searched or that something worse would happen. I dress better if I go downtown. I don’t hang out with friends outside my neighborhood in Harlem as much as I used to. Essentially, I incorporated into my daily life the sense that I might find myself up against a wall or on the ground with an officer’s gun at my head. For a black man in his 20s like me, it’s just a fact of life in New York (Peart, 2011, p. 1).

The role of the police is to protect and deter crime. When the police instead instill a sense of fear into African American people, they are accomplishing the same agenda as the Jim Crow laws of the South did generations ago.

Mass incarceration and surveillance policing promoted through the War on Drugs and the prison industrial complex have many impacts on society as well. Institutionally, they militarized the police and justified excessive use of force. Although done in the name of security, as public protests of the last two years show, this has resulted in an erosion of trust in society. Communities, especially minorities, are fearful of the police. Socially, the arrests have collateral effect on family structure. Many families are broken apart due to the economic, social and moral burden of incarceration. Young children are especially vulnerable when a parent or sibling is incarcerated. Child Trends, a nonprofit, nonpartisan organization talks about the ill impacts of mass incarceration on children’s mental health. Their study shows that about 1.5 million minor children have a parent (mostly fathers) incarcerated in state or federal prison in the United States, and there is significant variation along racial and ethnic lines:

One in every 15 African American children has a parent in prison, compared with 1 in every 42 Hispanic children and 1 in every 111 white children. But all of these children are more likely than their peers to exhibit academic difficulties, emotional problems, and antisocial behavior. In fact, it seems that incarceration, by itself, places children and families at increased risk—above and beyond the influence of parental mental health, educational, and employment issues–for a number of negative outcomes including family instability, poverty, and aggressive behavior. Examination of national data on children of unmarried couples in urban settings has revealed that, compared with other similarly-vulnerable children, those who have experienced parental incarceration are 40 percent more likely to have an unemployed father; 32 percent more likely to have parents living separately; 25 percent more likely to experience material hardship; and 44 percent more likely to exhibit aggressive behavior (Child Trends, 2013, p. 1).

Mass incarceration has had discernible impacts in poor and minority communities who have been disproportionately impacted by drug enforcement strategies (Stevenson, 2011). The negative impacts include felon disenfranchisement laws, displaced children and dependents, increased rates of chronic unemployment, destabilization of families and increased risk of re-incarceration for the formerly incarcerated (Stevenson, 2011, p. 1).

Even more disturbing is that politicians and the general public do not perceive “how high incarceration rates in poor communities of color tear apart the very social relationships that offer the best opportunity to nurture the well-being of our children and ultimately the common good of society. The effects of incarceration for an individual are well documented. These include: earning less money over the course of a lifetime (by age 48, the typical former inmate has earned $179,000 less than if he had never been incarcerated), finding it harder to stay employed, being less likely to become married, and highly likely to suffer a wide range of medical and psychological problems. … And for mothers who raise a child of an incarcerated father, they face multiple challenges, including, but not limited to, disruptions in parenting, inability to supervise children adequately, loss of role models, and need for public welfare supports that are increasingly difficult to gain” (Mikulich, 2010, p. 1).

The disruption of social relationships due to the War on Drugs has left inner cities in dismay. The ghetto is now transformed into a super ghetto with all avenues of society decimated. When a system is set into place that continues to deteriorate poor ghetto areas, there is no room for class/social mobility, the very basis of our capitalist economic system. Sarah Shannon and Christopher Uggen argue that incarceration is responsible for the deterioration of ghettos. Citing the work of Wacquant (2001), they note that “the extreme racial disparities in prison populations demonstrate that mass imprisonment is the fourth in a series of social institutions, starting with slavery, designed to control African Americans as a subordinate caste. … Prior to the 1970s, policy makers attempted to ameliorate poverty and racial inequality through social welfare policies. Wacquant argues that neoliberal economic changes and the dwindling social safety net of welfare programs since that time has led to the ‘hyper-incarceration’ of blacks as a means of managing and obscuring these disparities” (Shannon and Uggen, p. 1).

From the New Deal up until the War on Drugs, social welfare had been the focus of the federal government. This philosophy brought the United States out of the Great Depression. President Roosevelt increased the federal government with the development of welfare programs like the Food Stamp Plan and The Resettlement Administration. These programs were set into place to help those in extreme poverty overcome their situation. Today, it is not the agenda of the federal government to help poverty stricken groups overcome their situation. Policies implemented through the War on Drugs look to target and imprison rather than address structural issues such as poverty. Roosevelt’s New Deal ideology is no longer the driving force of the federal government but instead there is a new system that profits from incarceration.

Studies show that imprisonment has a cyclical effect on individuals and do not lower drug use. Cassia Spohn and David Holleran, for example, discovered that there is “no evidence that imprisonment reduces the likelihood of recidivism. Instead, we find compelling evidence that offenders who are sentenced to prison have higher rates of recidivism and recidivate more quickly… We also find persuasive evidence that imprisonment has a more pronounced criminogenic effect on drug offenders than on other types of offenders (Spohn and Holleran, 2002, p. 1).

Tough on crime policies have not positively benefited society but in fact created social upheaval, as “in schools and the workplace, the language of crime and punishment is used as a tool to interpret and address non-crime problems, a practice Simon (2007) calls ‘governing through crime.’ Common in these analyses is that change in penal policy is driven by political strategy, not by an actual increase in crime” (Shannon and Uggen, p. 1). At a larger level, the War on Drugs and mass incarceration have legitimized a crime focused, punitive culture in society.

The War on Drugs’ incarceration effects have validated the prison industrial complex and implicit racism in policing practices. It’s one thing to say drugs are bad morally, socially, and politically. However, to take the next step and codify law that makes it okay to target and imprison an entire race amounted to a new Jim Crow era. The policy has denied entire communities the right to exercise their political rights and live safe and secure lives in the absence of fear of violence. Individual freedom, the bedrock of our democratic values, does not extend to African Americans in the same way as it does to others. The promises of the Civil Rights Act can only be fulfilled by addressing the injustices of our criminal justice system, more particularly the prison industrial complex supported through the War on Drugs.

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Stevenson, Bryan. (2011). Drug Policy, Criminal Justice, and Mass Imprisonment. Global Commission on Drug Policy. Retrieved from: http://www.globalcommissionondrugs.org/wp-content/themes/gcdp_v1/pdf/Global_Com_Bryan_Stevenson.pdf

Sterling, Eric. (n.d.). How Did It Come About that Mandatory Minimum Sentences for Drug Offenses Were Passed in 1986? Public Broadcast Station . Retrieved from: http://www.pbs.org/wgbh/pages/frontline/shows/snitch/primer/

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Zakaria, Fareed. (2012). Incarceration Nation. Time Magazine . April 2.

[1] John Stern is a Law and Society graduate from Ramapo College, currently a law student at St. John’s University School of Law.

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