Mass Incarceration in the Age of Colorblindness
“More African American adults are under correctional control today- in prison or jail, on probation or parole- than were enslaved in 1850… locked away for crimes that are largely ignored when committed by whites,” Michelle Alexander, The New Jim Crow
The New Jim Crow: Mass Incarceration in the Age of Colorblindness, written by ACLU lawyer and academic Michelle Alexander, explains how the criminal justice system in America functions as the latest tool in America’s it’s history of racial inequality. Though published in 2010, the book has taken the spotlight in recent years as America begins to question the prison industrial complex and aim for social justice reform.
It’s common knowledge that the US has the highest rate of incarceration in the world (with only 5% of the world’s population, the US holds 25% of the prison population). For example, in Germany, 93/100,000 adults are incarcerated while in the US 750/100,000 adults are incarcerated.
In regards to who is getting locked up, the United States imprisons a larger percentage of its black population than South Africa did at the height of its apartheid. In Washington D.C., 3 out of 4 young black men can will statistically spend time in prison, and this percentage is similar across cities in the US. No other country in the world imprisons such a large percentage of their racial and ethnic minority populations, and according to Alexander, this difference directly relates to the “War on Drugs” in America.
Not only does America lock this large percentage of its country behind bars, but once prisoners are set free, they are behind virtual bars and marginalized further.
“Today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans… As a criminal, you have scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it,” Alexander states in The New Jim Crow.
Once you’re labeled a felon employment, housing, and educational discrimination becomes legal, you are excluded from the right to vote and jury service and the state is able to deny you public benefits such as food stamps. Imprisonment for drug use in some states is 20 or 50 times higher for people of color than for white people. Though people all races use drugs at the same levels, it’s people of color who are targeted to be punished for this offense.
How is this racial caste system in America allowed to continue? As Martin Luther King Jr. warned, oppression does not need everyone to be active racists, but it merely needs indifference. People don’t know, and don’t care what happens to “criminals” who go to prison, and thus this racist system has been allowed to continue to exist.
Alexander splits The New Jim Crow up into four main parts in order to deconstruct how the criminal justice system uses racism to create American society’s undercaste of criminals: History, Roundup, Formal Control, Invisible Control. At the end of the book, she offers beginning solutions to the way forward.
During the Reconstruction after the Civil War, convicts were contracted out as laborers to the highest private bidder. The prisoners had no rights, and unlike during slavery the organizations they worked for didn’t care whether they lived or died. Thus, the 13th Amendment in the Constitution (which abolished slavery in the US) allowed for one exception: prisoners. After slavery was abolished, vagrancy laws and other laws targeted former slaves and sent them to prison. Convicts had no rights at this time and were seen to be “slaves of the state,” as the Virginia Supreme Court case Ruffin v. Commonwealth ruled.
When slavery was outlawed, Jim Crow laws took up slavery’s role in holding whites in a superior position in American society, by legalizing segregation and discrimination. In the beginnings of the Civil Rights movement, calls for “segregation forever” were replaced by rhetoric pertaining to “law and order” in response to Civil Rights protests. This language continued after the Civil Rights Act was passed, continues into current day rhetoric surrounding police power and the criminal justice system. Reagan began the War on Drugs in 1982, directly targeting people of color without explicitly stating so. Funding for FBI, DOD and DEA anti-drug projects grew exponentially with incentives for local police to be “tough on drugs,” while funding for drug treatment agencies were reduced substantially. This led to the birth of mass incarceration- the new racial caste system.
“The War on Drugs, cloaked in race-neutral language, offered whites opposed to racial reform a unique opportunity to express their hostility toward blacks and black progress, without being exposed to the charge of racism,” Alexander writes.
Far from the War on Drugs being just a Republican led agenda, the Clinton Administration’s “‘Tough on Crime” policies resulted in the largest increases in federal and state prisons of any president in American history,” according to the Justice Policy Institute. During Clinton’s time, funding for public housing was cut by $17 billion while $19 billion extra was allocated to the prison systems, essentially making the prison the new housing system for the poor.
The idea that mass incarceration of black men has exponentially increased since the 1980’s is chalked up to the societal idea that “black men are just more violent.” Violent crime, however, is not the reason so many people are locked behind bars- the real reason is because of the War on Drugs and locking up non violent drug offenders at large. For example, homicide convictions amount to 0.4% of the early 2000’s growth in the federal prison population, while drug convictions amount to 61% of prison expansion.
Though people across state lines engage in similar rates of drug use, and at least 10% of the US population is involved with this use, it is only the poorest neighborhoods that see the drug raids, the SWAT teams breaking into homes, throwing grenades and wielding guns on a lead. Drug busts specifically focused on crack cocaine, which was demonized by the media and associated with the black community. Though it functions the same as the power cocaine, crack cocaine sentences are 100 times greater than cocaine sentences.
According to forfeiture laws, police regularly seize cars and property that are “related to” drug sale or use. Why not target suburban homes to forfeiture? This would be a quick end for the police’s power, because suburban communities would notice and make a big deal out of this. Because these things take place largely in impoverished communities of color, it’s not making the news except to label the person as a criminal, and taking the cops to court would cost poor people more money than the forfeiture of their car, or their home.
Racial profiling is legal according to United States v. Brignoni-Ponce, where it was found permissible under the 14th Amendment for police to use race as a factor in stopping motorists on the road (the justification being to identify people as undocumented immigrants). In general, race can be a legal reason for police to pursue someone, as long as it’s not the only reason. And, as we all know, people can always come up with another reason.
In 1999 an unarmed black man was shot 41 times by police for “looking suspicious” and walking into his own apartment. A uproar from citizens prompted a series of studies conducted by the attorney general of New York, one of the studies finding that African Americans were six times more likely to be pulled over and searched for weapons or drugs than white people. Regardless of this study, “stop and frisk” practices of citizens became even more racially motivated over the years and by 2008, 80% of people stopped and frisked were African American and Latino, with only 8% being white. The court case Alexander v. Sandoval solidified the legality of racial profiling, effectively ruling that only the federal government can sue to enforce Title IV in anti-discrimination cases, and private litigators such as the ACLU are no longer able to do so.
Why hasn’t the current justice system, or at least parts of it, been ruled as racist yet? In the court case McCleskey v. Kemp in 1987, a black man sentenced to the death penalty cited the Baldus study in court, which found that people charged with killing white people received the death penalty eleven times more often than people charged with killing black people.
The court ruled that even though the statistics shown proved credible evidence of racial bias in the justice system, the death sentence could not be challenged under the 14th Amendment unless “conscious, discriminatory intent” was found by an individual person involved. Basically, it was okay to abide by a racist system, and unless a person is explicitly racist, it’s acceptable to be as unconsciously racist with no penalty. There is no room for critical assessment of law, or of people’s actions with these kinds of rulings, yet this is what our legal system functions on.
The prosecutor has power over the plea deal, charging, transferring cases and sentencing, yet there is a lack of transparency for this position. In Armstrong v. United States, Christopher Armstrong, a black man, was charged with crack cocaine violation. In his trail, his lawyer asked for the prosecutor’s records. Armstrong’s lawyer wanted to prove that the prosecutor had racial bias, because according to the federal government, two thousand people were charged with federal crack cocaine violations, all but eleven were black and none were white. Similar to the above case of McCleskey v. Kemp, the court said that this evidence proved racial bias in the system, but Armstrong must make a case that his specific prosecutor had conscious racial bias to be able to make any claims.
30% of black men are automatically banned from jury service because they have a felony in their history. In addition, lawyers use “peremptory strikes,” where they can legally discriminate and exclude people of color and use race neutral language to do so. Voting rights in most states are not permitted to people with a felony on their record as well.
Prison time. A person’s life is on pause in prison with a lack of resources to advance one’s life. Inmates only interactions are with guards who are taught by prison protocol to dehumanize them and other inmates.
Life After Prison
The caste system resulting from mass incarceration extends outside of the prison walls. At the time The New Jim Crow was written 7.3 million people were under correctional control in the U.S., but only 1.6 million of which were actually in prison- the rest were under parole and being monitored with the threat of more prison time. Additionally, what matters most overall is having the prison label and being incorporated into the system, not necessarily the amount of time actually spent in prison.
For many released from prison, finding a home proves near impossible the first year out, if not near impossible for the rest of their lives. Someone with a felony on their record is not eligible for Section 8 housing, and most other landlords require background checks as well. Without housing, parents can lose their children. In addition, those living in public housing might be wary of letting friends or family just out of prison live with them, because if any drugs are found, they could all lose their housing.
Finding work provides the same challenges, as most all applications ask if the applicant has been convicted of a felony. Nevertheless, out of fifty states, forty of them require a person recently released from prison to acquire work soon after leaving prison, and failing to do so could mean a return to prison. Parolees find themselves “locked out of the legal economy,” Alexander writes. However, the few that do get brought back into the legal American economy find the minimum wage near impossible to support themselves, much less a family on, as well as pay probation fees, drug tests, etc. with.
Food stamps are denied to people with a felony on their record, with a few exceptions in some states. Most states deny the right to vote to people with a felony on their record. Research indicates that if convicted felons were allowed to vote, election outcomes would have made a different history.
Black Families and Black Communities
Alexander explains that though incarceration of black men has been a norm, there is still a shame and secrecy around these events. In addition, black leaders such as Barack Obama have called for black men to stop abandoning their families and children, but there is not discussion about where these black men might be because of the War on Drugs, racial profiling and the prison industrial complex.
“Slavery defined what it meant to be black (a slave), and Jim Crow defined what it meant to be black (a second class citizen). Today mass incarceration defines the meaning of blackness in America: black people, especially black men, are criminals. That’s what it means to be black,” Alexander writes.
Even if a black man has never been to prison, our culture still associates blackness with criminality, thus a white person with a criminal record might be given a job over a black person without a criminal record. Similarly, white people (and white people with a criminal history) have an easier time getting housing in suburban white areas, while black people with and without criminal histories are continually pushed back into the inner city’s impoverished and overlooked neighborhoods. Thus education access is not there, and the cycle of poverty and criminalization continues.
“If one thinks about racism by examining only one wire of the bird cage, or one form of disadvantage, it is difficult to understand how and why the bird is trapped,” Alexander explains, using a theory by Iris Marion Young.
So what’s to be done?
Criminal justice reform means not only challenging legal cases, but also building a mass movement and challenging dominant narratives about what criminality means. We must admit that our conception of criminality is part of a racist world view, and we must work to change this. We must work to end the current prison system, because it is currently creating much more crime than it is locking up. Alexander posits that while affirmative action has had great psychological impacts on making the black community feel more empowered, it might be merely cosmetic diversity. She argues that if affirmative action were taken away, America’s universities and jobs would become much more dominantly white than they already are now, and having affirmative action (though still a useful program) is also a way to cover up the real problem, and is hiding the root of the inequality in the first place.
Alexander asks that instead of being “colorblind” society, we begin to become “color conscious,” and critically analyse what’s been happening in this country for all of its history, including present day manifestations.
“The idea that we may never reach a state of racial equality- a perfect racial equilibrium- is not cause for alarm. What is concerning is the real possibility that we, as a society, will choose not to care. We will chose to be blind to injustice and the suffering of others… Seeing race is not the problem, refusing to care for the people we see is the problem,” Alexander states.
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