Skip to main content

To change your entire view of the American justice system; to see the most pressing civil rights issue of our time; read The New Jim Crow: Mass Incarceration In The Age of Colorblindness by Michelle Alexander.
    The most despised group in America is not gays, transgenders, nor even illegal immigrants - it is "criminals." Michelle Alexander, a former clerk to Harry Blackmun, former civil rights attorney, and present law professor puts it all together in showing how the War on Drugs has worked to subjucate, disenfranchise, and impoverish huge swathes of poor black and brown people who are no more criminals than the average American. Ex-cons and illegal immigrants are the groups toward which discrimination is not only condoned, but socially approved.
      There are more black males under criminal justice control (incarcerated, parole or probation) today than were enslaved in 1860.

   The New Jim Crow's focus is the War on Drugs as it affects African-Americans, although at times the author briefly highlights effects on Hispanics and also frequently discusses the cumulative impacts of the criminal justice system on the African-American community.
     The focus on drug offenses has resulted in some friendly criticism:

James Forman Jr. [son of the civil rights leader], a clinical professor at Yale Law School and a former public defender, calls mass incarceration a social disaster but challenges what he calls Professor Alexander’s “myopic” focus on the war on drugs.
  Painting the war on drugs as mainly a backlash against the gains of the civil rights movement, Professor Forman writes, ignores the violent crime wave of the 1970s and minimizes the support among many African-Americans for get-tough measures. Furthermore, he argues, drug offenders make up less than 25 percent of the nation’s total prison population, while violent offenders — who receive little mention in “The New Jim Crow” — make up a much larger share.
  “Even if every single one of these drug offenders were released tomorrow,” he writes, “the United States would still have the world’s largest prison system.”
Alexander responds that the greater social effect is from the larger number of persons on probation and parole for non-violent, largely drug offenses and the life-long stigmatization of the "criminal" label, again largely for non-violent cases.

PLEASE if I can't inspire you to read the book, look at the fairly decent   wiki summary
ALSO: Drug Policy as Race Policy: Best Seller Galvanizes the Debate

Keep in mind in reading the balance of this article that I am writing from the standpoint of a privileged older WASP male who has been actively involved in the politics of the criminal justice since 1980 with an academic background in history, economics, criminology and law (academic pursuits have been as much a hobby as an investment for me). For me, the meat of the book is chapters 2-4; it is also the portion which can be embraced across wide swathes of the political spectrum

CHAPTER 1 The Rebirth of Caste
   This chapter is the most problematic portion of the book, although most Kossacks will find it very congenial with their world view. The chapter begins with what amounts to a critical race summary of American history through the Johnson administration. Thereafter, it discusses the attack on disorder and "coddling criminals" as a political response of displaced elites attempting to reestablish social and political control. Reagan's War on Drugs is described in terms on cementing political alliances and mainly as addressing a non-problem. The Clinton administration then sells out and exacerbates the problem as the political theme of being 'tough on crime' becomes irresistable and opposition to the "New Jim Crow" collapses similar to the way opposition to first Southern "Redemption" and then the imposition of Jim Crow collapsed.
   There are substantial elements of truth to her account, but I must agree with Professor Forman that it is missing important elements also. (I will skip over history prior to 1968). Although largely a demographic function of the entry of the baby boomer generation into the prime crime years, the rise in crime and its effects on communities in the '60's and '70's was real - it resulted in real political support for tighter social control through law enforcement among blacks as well as whites. The devastation of drug use (excluding marijuana) was also real, just like the devastation of alcohol that led to Prohibition. Politicians campaigning in black communities in the '70's and '80's earned no points for saying they wanted to open the jail house doors or stop worrying about gangs.
   For a fairly academic book that is so excellent in its later chapters, it is also unfortunate that the book overlooks the developments in criminology that tied into and magnified the damage of mass incarceration - the repudiation of rehabilitation and the "Broken Windows" theory of crime control.
   Into the 1960's, rehabilitation was a prominent stated goal of the justice system. The efforts along that line were, however, poorly thought out and applied to all types of offenders without individualization to their crime or other circumstances. Traditionally, criminal sentences in this country have been like medicine before the development of anesthesia and the germ theory - you could try a folk remedy, sometimes effective, like willow bark tea (the precursor to aspirin), you could cut something off, you could use an emetic, you could prescribe a change of diet or environs, or you could bleed the patient. Nobody knew much about what actually worked for which patients. So when criminology looked at the effectiveness of rehabilitation efforts, they were generally ineffective. (Close review of those studies would have suggested that many education programs were modestly effective - whether involving obtaining GEDs or college level degrees. Such programs faced hostility, however, as "rewarding crime".) Therefore the rubric developed: "nothing works" and correction organizations shifted in the 1970's to a near-total dedication to deterence and incapacitation (whether imprisonment or the social control of probation and parole).
   At the same time came the "Broken Windows" theory of crime, developed by James Wilson, and so beloved of conservatives everywhere. This is a respected theory of crime control, for which there is a good deal of supporting evidence. It is also the excuse for every oppressive, mass-sweep, racially discriminatory, over-bearing police operation in the country. So and so poor black or hispanic neighborhood is identified as a "high crime" area - usually with no evidentiary support beyond the gut of the police chief, and the broken window theory justifies a focus to try to round up every minor infraction and evade by whatever tactic one can any limitations of the Fourth Amendment, for the good of the victimized community. But what studies of the effectiveness never do is weigh the cost of mass arrests in terms of the permanent unemployability, disenfrachisement, etc., of those arrested and their families, both current and future, and the role mass arrests play in the break-up of the black family - it's too damn hard to do so.

CHAPTER 2 The Lockdown
   I have nothing but praise for Chapter 2. Alexander masterfully connects the dots on the construction of the tools of what she aptly refers to as the lockdown - legal citations and footnotes to studies amply provided (the Supreme court law clerk reappears). The practical erosion is explained and illustrated - how the form of Fourth Amendment protection was preserved through academic distinctions of Terry stops, consent searches, training in prolonging temporary detentions, "non-intrusive" drug-dog air searches, "drug courier profile" and "high crime area" deference to police hunches, all combined in a practical annihilation of the Founder's goal of protecting against mass sweeps and general warrants. Weaved into that are the financial incentives provided police agencies in the form of federal grants and asset forefeiture laws to give police the incentive to conduct mass searches. She points out how the approach of the courts is facilitated by the fact that judges typically only see the individual hunches that pay off, not the many cases that involve harrassment of the innocent - leading to an unconscious respect for the wisdom of police judgment. Next she weaves in the effect of poor legal representation, including the always overlooked high legal and psychological barriers to challenging asset forefeiture. (The innocent friend or family member whose property is seized or the unconvicted arrestee has no legal representation and a fear of prosecution or harrassment if the seizure is challenged). Then on to the refusal of the Courts to examine disproportionate sentencing or give any meaning to the Eight Amendment's bar on cruel and unusual punishments. Finally, she takes her first look at the widepread, life-long collateral consequences too numerous to list, including loss of access to safety net measures (Food stamp, welfare, public housing), punishment of family members (e.g., loss of public housing for innocent persons if any guest is convicted), private discrimination, particularly in employment, etc.

Chapter 3 The Color of Justice (and the "disappearance" of racial profiling)
    The masterful connecting of the dots continues in this chapter as the author shows how equal levels of drug use in different racial groups results in incarceration rates 20+ times higher in black and hispanic communities than among whites. The numerous citations to statistical evidence for this include two counter-intuitive examples: one, a federal study which shows that the incidence of selling drugs ia one-third higher among white teens than black teens; two, another study showing that the rate of emergency room admissions for drug overdoses is three times higher among whites than blacks. (Although Alexander uses these studies to say that drug use "may be" higher among whites than blacks, a little thought makes these two consistent with the other studies showing the same rate of drug use - the reduced fear of prosecution for drug sales should make whites a little more casual about selling to friends, and the greater access to health case and reduced fear of criminal reprecussions should likewise result in higher use of emergency room treatment).
    Then Alexander shows how the exercise of discretion by police and prosecutors have been systematically protected from review by the courts, especially the US Supreme Court. Thus a decision by police to use a minor infraction as a tool to launch a drug investigation is utterly beyond challenge. Similarly, the Supreme Court has cut off all challenges to systematically racially biased law enforcement effects as a defense to prosecution, starting with death penalties in McClesky v. Kemp, and moving on to other crimes in Armstrong v. United States to a position perhaps even more hostile to claims of racial discrimination in law enforcement than the Supreme Court of the late 1800's in Yick Wo v. Hopkins.
    Next Alexander takes us through the mechanics of how one winds up with racially disparate outcomes whether racism is overt or not. She rebuts the assumption that there are sociological explanations which provide benign explanations of the different outcomes. A 2002 U.Wisc. microcosm study of Seattle was especially instructive. One explanation normally given for uneven arrests is that blacks sell drugs in the open more than whites. When the researches came to Seattle, they easily determined that there were 5 open air drug markets in Seattle, 4 all-white, one mostly black in the central district. Citizen complaints concentrated on drug activities in private residences distributed throughout the city. But enforcement activities were heavily concentrated on the black open air market.
    Finally, Alexander focuses on the 1990's litigation on racial profiling. After going through the details of racial profiling proved in those lawsuits and related inquiries, she draws back the curtain on why racial profiling is no longer reported. Not because racial profiling has ended as most of the uninitiated naturally presume. Such litigation ended because the U.S. Supreme Court ended it, by ruling that individuals could not bring suit for systematic State racial discrimination under Title VI. Racial profiling is invisible, not departed.
    Alexander summarizes the Chapter as follows:

The Supreme Court has now closed the courthouse doors to claims of racial bias at every stage of the criminal justice process, from stops and searches to plea bargaining and sentencing. The system of mass incarceration is now, for all practical purposes, thoroughly immunized from claims of racial bias. Staggering racial disparities in the drug war continue but rarely make the news.
This summary is 99% accurate but elides one small but important loophole left often for justice in the courts (noting in passing earlier). The US Justice Dept. still has the authority to bring claims of systemic racially biased effects under Title VI (and other statutes at times). This is what the current litigation against Sheriff Joe in Arizona, that is driving conservative hacks crazy, is based upon.

Chapter 4 The Cruel Hand and beyond
In the balance of the book, the author goes into the life-long branding performed by the criminal justice system and its varied and crippling effects. How private discrimination in employment against those with criminal convictions is completely legal and nearly all-pervasive. How discrimination against those merely arrested is arguably mostly illegal but widespread nevertheless (The EEOC takes the position that inquiring about arrests is illegal in most employment situation due to its racially disparate effects. This 'prohibition' is widely ignored, seldom enforced, and rests upon the insecure basis of old Supreme Court decisions from the Warrent Court days when the Supreme Court took claims of racial bias by blacks seriously - now they only take claims of racial bias seriously from whites).
   But of greatest interest to a political site is the effect on voting and representation. Felony convictions in other industrialized countries do not disenfranchise citizens, except while the felon is in prison (and not then in some countries). In my majority-black county 58%+ of registered black voters are female. Where are the missing black male voters? They have suffered civic death as a result of their felony conviction. Many states disenfranchise felons for life; most that allow reinstatement of rights, require a bureaucratic process most ex-cons cannot navigate. Adding insult to injury, most prisons are situated in rural "red" areas. Their disenfranchised inhabitants count towards the population of the "red" area, bolstering its strength in reapportionment. The black and hispanic "votes" of the prisoners are "cast" by the prison guards and their community.
    Alexander also describes why the life-long effects of felon labelling are mostly invisible to society, even in the black community, as well as the destruction of self-esteem. Her prescription for change is the call for a mass movement that refuses to be colorblind and brings the disparate racial effects of the criminal justice system out of the shadows into the open air. For further details read her book.

Incremental Steps Forward - My Modest Suggestions
   I do not dispute the need for laying the faoundations for a mass movement and would hope that many persons will be inspired to read this best-seller and make a life-long commitment to the cause of racial and ethnic justice in the criminal justice system - for the poor, the arrested, the con, and the illegal immigrant. My own view is that we are in the earlier days in this civil rights fight, comparably to the 1930's and 40's, when the NAACP and "agitators" had to concentrate on small gains while laying the foundation for later progress, such as suits enforcing the "equal" in "separate but equal" or fairness in federal hiring and with federal contractors. But I would like to see some progress in my lifetime and I think we are at a unique juncture where the seeds of Chapter 2 through 4 may bear fruit in very unlikely soil:
Drug Policy as Race Policy: Best Seller Galvanizes the Debate
    Fiscal Conservatives - The anti-tax party is dominant in most state and local government today. Additionally, the fiscal position of many states and municipalities is rapidly deteriorating. What parts of local and state expenses have been the most out-of-control? Prison/law enforcement and pensions. So if you want to go where the money is one naturally looks at two remedies: screws the government employees and clean up the illogical, ineffective or counter-productive excesses of incarceration and law enforcement. Thus, for instance, in Georgia with a conservative Republican Governor and General Assembly which delights in excesses against illegal immigrants even when hurting the state economy, we have the first attempts to rein in over-the-top sentencing and to expand rehabilitative services and diversion from criminal prosecution through treatment courts.
   Conservative religious figures - Here at DailyKos, we normally see Catholic religious figures and evangelicals as enemies in the culture war. But the Catholic church, and particularly its social services, has about as advanced a attitude towards penal rights as anyone, at least during the pauses when the Bishops aren't focusing on defeating evil pro-choice politicians. And unbelievable as it may be to many here, there are evangelical leaders, like Rick Warren, the pastor and Chuck Colson ministries in the NYTimes article above, who believe that Christian ministry means more than justifying and catering to the wealthy, and who have a fairly decent record of favoring efforts directed to the less fortunate, so long as it can be done without entanglement with government. Since the essence of the cause here is to thwart oppressive government, and disentangle counter-productive government action there is room for support.
    Libertarians As shown above, the heart of the book is the destructiveness of the War on Drugs. One of the most obvious answers is progressive demobilization from the War on Drugs. A large portion of the libertarian movement is sympathetic to this - witness Ron Paul.

Specific actions -
1. Re-elect Obama. Alexander clearly has no use for what she sees as the tepid lack of enthusiasm of Obama for restraining the destructive impact of the War on Drugs. Sort of like the attitude of many here for his approach to the War on Terrorism. But the Obama administration at least is moving in the right direction - more money for rehabilitation, less for militarizing police forces, the suit against Sheriff Joe, some alleviation of racial disparities in drug sentencing, etc.
    The U.S. Justice Department is a key player here for two reasons: one, they are an important enabler through inaction and acquiesence in discriminatory enforcement in the War on Drugs. Two, they are the only entity with the legal tools to fight racial/ethnic discrimination in law enforcement - and each occasion they have done so under Holder has resulted in howls of pain from the Right. This is one area in which a second Obama adminstration could have an important impact in the absence of control of Congress.
   And then there's the Supreme Court and possible vacancies there and elsewhere in the federal courts. Obama has been largely stymied in making district and appellate appointments but in a second term, it is likely there could be significant redressing of the partisan imbalance in the federal courts.
2. Support diversion and rehabilitation, including treatment courts - It can be argued that diversion and treatment courts have their bad side. Diversion is almost always at the sole discretion of the prosecutor, there is already too much unbridled discretion in prosecutor's hands. But the saving grace of diversion is it normally protects employability, avoids labelling the "offender" as an ex-con, and avoids incarceration.
    Treatment courts come from the efforts of courageous judges who became tired of remedies which just made things worse, or at best left them the same at high cost to the taxpayer. Treatment courts involve getting heavily involved in the offender life for a long time and with close supervision. It can be argued that it is unfair to the offender dragged in through racially discriminatory policing to impose such strict supervision enforced through the constant threat of incarceration. But treatment courts have several offsetting advantages which heavily outweigh their costs: 1. They provide effective substance abuse treatment for a population that can't get it anywhere else; 2. many programs, especially drug courts operate before adjudication, avoiding making the labelling process worse; 3. they do genuinely focus on all aspects of rehabilitation to the extent they can get funding - finding housing for the homeless, jobs for the unemployed, special efforts to boost self-esteem in a population that has been told they're worthless, etc.
3. Political involvement in local elections for prosecutors and judges. Nearly all local prosecutors and lots of local judges are elected. Become a smart involved voter in these races. Provide input seeking smart, effective, less expensive, more humane law enforcement to provide a counter-balance to the tough-on-crime, throw-away-the-key voices which usually dominate such races.
4. Legally limit use of arrest records in employment decisions - legislation limiting the dissemination of arrest records to employers even with consent and of employers asking about arrests is needed. It is already suuposedly the law under the Fair Employment Act for most employment decisions (unless a genuine need can be shown to offset the discriminatory effect). There will have to be some limited exceptions for certain professions to get legislation passed. It is bad enough that conviction can result in life-long branding: "do not employ." But to have arrests based on a loose probable cause standard tar the name of innocent persons is particularly unfair.
5. Oppose mandatory sentences for most crimes, particularly non-violent ones. Discretionary sentencing by judges is not always ideal. Judges are human and likely to give too much weight to their personal gut instincts which can be an avenue of discrimination. But the experience with the U.S. Sentencing Commission and other mandatory sentencing showed that mandatory sentencing did not eliminate the discretion - it transferred the power to the prosecutor. It becomes a constant temptation to coerce guilty pleas in the name of acceptance of reponsibility or induing cooperation in putting away other 'targets' selected in the sole discretion of the prosecutor, and the efficiency of the justice system. Non mandatory sentencing guidelines insert some impulse towards uniformity of treatment is probably not a bad idea - unfortunately, all too often guidelines get transformed into mandatory sentences (see Virginia).
6. Rein in asset forefeiture. The concept of guilty property owned by innocent people is particularly archaic.
7. Have the courage to reduce the bias against "ex-cons" in your own life, such as employment decisions.
8. Be careful about use of critical race theory analysis. It may be satisfying to blame the situation on nefarious, intentional efforts of political persons and institutions you dislike, but be careful about giving in to such impulses outside the presence of like-minded persons. Not only will it turn off the possibility of unlikely alliances, but it will turn off many Democrats, progressives and moderates who will find such analysis far-fetched - maybe even me.
9. There are other obvious steps I have left out, inadvertently or deliberately (there is no true anonymity in the modern age). Come up with them on your own.


A final side note - For a very extreme example of how class, position, and, at the end, probably race saved a merciless, law-and-order federal judge from the consequences of a drug offense with weapon enhancement, see
Sentencing of Judge Jack Camp
The normal sentence would have resulted in imprisonment for the expected duration of his life and loss to him and his family of his pension rights. He wound up with 30 days in jail and community service. The mitigating factors involved in his case were mostly exactly the sort of mitigation that Judge Camp studiously ignored in his own career on the bench. But he was well-liked in the legal community as personally polite and charming, the epitome of an old-fashioned Southern gentleman.
    I am confident that race as such played no role in the favorable treatment of Judge Camp in the initial plea negotiations with the US Attorney.  But the sentencing judge's decision to unilaterally deviate from the negotiation by reducing the charge to a misdemeanor - I doubt a black federal judge would have gotten that.

Originally posted to Themistokles on Sun Mar 18, 2012 at 04:14 PM PDT.

Also republished by Daily Kos Classics.

Your Email has been sent.
You must add at least one tag to this diary before publishing it.

Add keywords that describe this diary. Separate multiple keywords with commas.
Tagging tips - Search For Tags - Browse For Tags


More Tagging tips:

A tag is a way to search for this diary. If someone is searching for "Barack Obama," is this a diary they'd be trying to find?

Use a person's full name, without any title. Senator Obama may become President Obama, and Michelle Obama might run for office.

If your diary covers an election or elected official, use election tags, which are generally the state abbreviation followed by the office. CA-01 is the first district House seat. CA-Sen covers both senate races. NY-GOV covers the New York governor's race.

Tags do not compound: that is, "education reform" is a completely different tag from "education". A tag like "reform" alone is probably not meaningful.

Consider if one or more of these tags fits your diary: Civil Rights, Community, Congress, Culture, Economy, Education, Elections, Energy, Environment, Health Care, International, Labor, Law, Media, Meta, National Security, Science, Transportation, or White House. If your diary is specific to a state, consider adding the state (California, Texas, etc). Keep in mind, though, that there are many wonderful and important diaries that don't fit in any of these tags. Don't worry if yours doesn't.

You can add a private note to this diary when hotlisting it:
Are you sure you want to remove this diary from your hotlist?
Are you sure you want to remove your recommendation? You can only recommend a diary once, so you will not be able to re-recommend it afterwards.
Rescue this diary, and add a note:
Are you sure you want to remove this diary from Rescue?
Choose where to republish this diary. The diary will be added to the queue for that group. Publish it from the queue to make it appear.

You must be a member of a group to use this feature.

Add a quick update to your diary without changing the diary itself:
Are you sure you want to remove this diary?
(The diary will be removed from the site and returned to your drafts for further editing.)
(The diary will be removed.)
Are you sure you want to save these changes to the published diary?

Comment Preferences

Subscribe or Donate to support Daily Kos.

Click here for the mobile view of the site