The New Jim Crow

The preliminaries

• “Mass incarceration” includes prisons, jails, and interconnecting laws and customs; it relies on racial indifference and unconscious bias, not overt racial animus, so the existence of “exceptional” blacks (e.g., Oprah Winfrey) is not antithetical. 
• Over 7 million people are under correctional control (parole and probation) and over 1.5 million are in prison.
• No other country incarcerates so many of its racial or ethnic minorities.
  • The countries with the next highest rates of incarceration are Russia, China, and Iran.
• Violent crime is historically low, but incarceration rates climb; drug offenders are 61% of the past decade’s federal prison population growth. 
  • In 2005, 4/5 drug arrests were for possession.
  • In the 1990s, arrests for marijuana possession accounted for nearly 80% of the growth in drug arrests.
• Until 1988, the maximum penalty for possessing any amount of any drug was one year of imprisonment. Now, people can get 20 years for possession of marijuana in some states.
• The majority of illegal drug users and dealers are White, but Black and Latinx constitute ¾ of those imprisoned for drug offenses.
  • National Institute on Drug Abuse: White students use cocaine and heroin at 7x the rate of Black students, and crack cocaine at 8x the rate of Black students.
• A former prosecutor said: “It’s a lot easier to go out to the ‘hood, so to speak, and pick somebody than to put your resources in an undercover [operation in a] community where there are potentially politically powerful people.”
• Research demonstrates that the War on Drugs is a major cause of poverty and crime.
  • Programs that offer gang members jobs instead of prison dramatically reduce violent crime.

History: Slavery, the Civil War, and Jim Crow

• As plantations expanded, so did the demand for labor: African slaves were preferred.
  • Planter class offered special privileges to poor Whites so they would have a direct stake in the existence of a race-based system of slavery.
• The aftermath of the Civil War was catastrophic to the planter class and poor Whites (because at least the poorest White person was superior to a Black person).
  • So, Southern Whites desperately wanted a new system of racial control; the thought of a Black insurrection terrified them.

In fact, the current stereotypes of black men as aggressive, unruly predators can be traced to this period, when whites feared that an angry mass of black men might rise up and attack them or rape their women.

• In the 1860s, the KKK brought a campaign to “redeem” the South through bombings, lynchings, etc. As a result, the federal government stopped enforcing federal civil rights legislation, and segregation laws accumulated.
• In the 1900s, Jim Crow was in every Southern state: laws disenfranchised Blacks and discriminated against them in every sphere of life (schools, orphanages, prisons, morgues, jobs, restrooms, etc.).
  • This slowly fell apart:
    • During World War II, the hypocrisy of America’s opposition to the Third Reich’s treatment of Jews and America’s treatment of Blacks was morally embarrassing.
    • The Supreme Court of the United States (SCOTUS) ended the all-white primary election, segregation on interstate buses, desegregated law schools, etc., and then in Brown v. Board of Education, schools had to be integrated.
    • Officially dismantled with the Civil Rights Act of 1964.

The Birth of Mass Incarceration: Politics and Presidents

• In the 1950s, people wrongfully alleged that civil rights protests were threats. So, “[t]he rhetoric of ‘law and order’ and ‘get tough on crime’ was first mobilized…as Southern politicians attempted to generate white opposition to the Civil Rights Movement.”
  • FBI reported dramatic increases in national crime, mostly due to the spike in the number of men aged 15 – 24, which historically has been responsible for most crimes. This happened while unemployment rates surged.
• As a reaction to the Civil Rights Movement in the 1960s, “[a] new race-neutral language was developed for appealing to old racist sentiments” as proponents of racial hierarchy realized they could restructure a racial caste system within the confines of acceptable political discourse by demanding phrases such as “law and order.”

Ronald Reagan’s campaign in 1980 relied on “the emotional distress of those who fear or resent the Negro, and who expect Reagan somehow to keep him ‘in his place’ or at least echo their own anger and frustration.”

• Reagan wanted to be tough on crime, but much of street crime was fought by state and local law enforcement. So, in 1982, he announced the War on Drugs; federal law enforcement agency budgets soared while funding for drug prevention and treatment sank.
  • At the time, less than 2% of Americans thought drugs were the most important issue.

Central to [President Reagan’s] media campaign was the effort to sensationalize the emergence of crack cocaine in inner-city neighborhoods—communities also devastated by deindustrialization and skyrocketing unemployment.

• Reagan used the media to turn attention to focus on crack, and soon the media was filled with new images and articles of black “crack whores,” “crack babies,” “welfare queens,” and “predators.”
• President G.W. Bush continued, exclaiming that drug use was the nation’s most pressing problem, even though there was not a dramatic shift in illegal drug activity.
• President Clinton’s policies led to the largest increases in prison populations. 
  • He permanently banned food stamps and governmental assistance for anyone convicted of a felony drug offense, including possession of marijuana. 
• The author stresses that no one should minimize the harm caused by crack cocaine; but, she argues, there were better solutions.
  • For example, Portugal responded to its drug problems by decriminalizing drug possession and redirecting the money to drug treatment and prevention. Ten years later, rates of drug abuse, addiction, and drug-related crime plummeted.

The War on Drugs Leads to Mass Incarceration

• The federal government provided huge cash grants to state and local law enforcement agencies that made drug-law enforcement a top priority.
  • Reagan allowed state and local law enforcement agencies to keep the vast majority of cash and assets seized when waging the drug war, which created a huge monetary incentive.
    • Essentially, agencies could take a person’s property merely on the grounds that it might be connected to a crime (seizing a car in which drugs might have been transported, etc.). The owner must demonstrate innocence in order to repossess the property.
    • These drug-war forfeiture laws are frequently used to allow those with assets to buy their freedom (the “kingpins”), while drug users and small-time dealers get prison terms.
• The right to an attorney: Extraordinary numbers of adults and children are convicted without meeting an attorney; many plead guilty to crimes they did not commit, fearing mandatory sentences. 
  • In Ohio, as many as 90% of children charged with criminal wrongdoing do not get access to a lawyer.
• Trial: nearly all criminal cases are resolved through plea bargaining—a guilty plea in exchange for prosecutorial leniency.
• SCOTUS eviscerated Fourth Amendment protections against unreasonable drug searches and seizures by the police.
  • A person can be searched for drugs upon giving “consent” even if the officers have no probable cause a crime is being committed (a person may withhold consent if comfortable enough telling an officer “No, I do not consent to a search”).
  • Officers may use minor traffic violations as an excuse—a pretext—to search for drugs, even if there is no evidence that the motorist violated drug laws.
  • Several federal judges, conservative and liberal, have quit in protest of harsh drug laws.

The Prison Label

• An example: Erma Stewart, a single Black mother, was arrested as part of a drug sweep, and she maintained her innocence. After a month in jail and no one to look after her children, she pled guilty and received 10 years probation and a $1,000 fine. She was no longer eligible for public benefits, faced employment discrimination, was evicted from public housing, and her children went into foster care. Later, a judge found that the sweep rested on unreliable testimony. She was still a drug felon, homeless, and desperate to regain custody of her children.
• Housing discrimination against ex-offenders is legal—even against people who have been arrested and never convicted, or against people who had only knowledge of criminal activity.
• Employers can deny jobs to not only ex-offenders, but also those arrested (and not convicted).
  • Willingness to hire ex-offenders is greatest in construction or manufacturing, but these jobs are often not close to home, and transportation is challenging.
• Most felons, even when released on parole, cannot vote. Every state has its own process for restoring voting rights, which can be complicated and expensive.
  • Prisoners legally count as residents of where they are incarcerated, and because most prisons are in White, rural areas, these areas get more representation in state legislatures. (Similar to the Constitution’s ⅗ clause.)

How the New Jim Crow functions in “colorblind” systems

• First, the War on Drugs sends extraordinary numbers of Black men to prison because drug operations operate primarily in poor communities of color and police are rewarded cash (drug forfeiture laws and federal grant programs). 
  • Almost no constitutional rules restrain them, so racial biases flourish: SCOTUS has said that discretion plays a necessary role in the implementation of the criminal justice system, and that discrimination is an inevitable by-product.
  • There’s no clear victim for drug violations, and one in ten Americans violate drug laws. So, law enforcement must be much more proactive; at the same time, they have been exposed to racially charged rhetoric. Thus, they imprison more Blacks.
  • SCOTUS essentially immunized prosecutors from claims of racial bias, which created an environment in which conscious and unconscious biases flourished.
  • In a 2000 study, prosecutors sent Black youth to prison more than 6x the rate they sent White youth, for identical crimes.
• Second, lack of legal representation, coupled with intense pressure to plead guilty to harsh sentences seen nowhere else in the world, leads to high incarceration rates.
• Third, discrimination against ex-offenders in employment, housing, education, public benefits mean most will eventually return to prison.

• Mapping the parallels between mass incarceration and Jim Crow
• Detailed analyses of multiple SCOTUS cases, including cases on prosecutors and juries
• The massive debts offenders owe upon leaving prison
• Black support for “get tough” policies
• The mental and emotional toll of mass incarceration on individuals and communities
• Issues facing civil rights advocates, such as complications with affirmative action
• Private-sector investment in prisons
• The damage of colorblindness
• Why an officer’s “hunch” is not as reliable as typically believed
• The paramount importance of ending the history of racial caste in America
• How the New Jim Crow damages people of all races