The New Jim Crow

March 13, 2017

Institutional racism depends more on indifference than outright hostility.

“I was a stranger and you did not invite me in, I needed clothes and you did not clothe me, I was sick and in prison and you did not look after me.” —Matthew 25:43

When my children and grandchildren look back at our point in history, I expect the phrases “war on drugs” and “mass incarceration” to fall as ominously on their ears as the phrase “Jim Crow” does on ours. They will marvel at our naïveté, our blindness to a demonstrably discriminatory system, our willingness to believe that racism is a thing of the past merely because people rarely use the n-word in public anymore.

Despite historically low crime rates similar to other developed nations, the United States imprisons more people than any other country on Earth, even China, which has more than four times our population. Our prisoners are disproportionately black, and disproportionately imprisoned for drug offenses even though rates of drug use and distribution are roughly equivalent between black and white populations. And yet this was not always the case. Incarcerations for drug offenses have increased 1,100% since President Nixon’s War on Drugs began in 1980, with no measurable impact on actual drug use in America.

What’s more, those swept up in the system are stripped of many of their civil rights. If you’re convicted of a nonviolent drug offense reclassified as a felony, you can be legally barred from voting, serving on juries, obtaining business licenses, or receiving public assistance, to say nothing of the discrimination you’ll face when “checking the box” on job applications.

If you think this sounds like a system designed specifically to strip black citizens of their civil rights, you’d be half-right. It was also aimed at hippies. As Nixon domestic adviser John Ehrlichman would later admit in a 1994 interview with Harper’s magazine:

“You want to know what this was really all about?” he asked with the bluntness of a man who, after public disgrace and a stretch in federal prison, had little left to protect. “The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”

How The System Works

Alexander uses the term “racial caste system” to describe how the criminal justice system, under the policies of the War on Drugs, systematically undermines the civil rights of black citizens while maintaining a veneer of race-blindness. It functions on three levels:

Enforcement

For a while now, data have shown that drug use is roughly equivalent across black and white populations, but that law enforcement targets black communities at significantly higher rates than white ones1 (you don’t see much “stop and frisk” on Wall Street). This gives the veneer of justice—after all, those targeted have committed a crime—even though we recognize the fundamental injustice of looking the other way when people of a different color do the same.

It’s important to recognize that this isn’t always because of racist cops—it’s easily explained by perverse incentives. Federal policy from the War on Drugs provides additional funding and equipment to police departments that significantly increased the number of drug arrests, so departments naturally responded by ramping up enforcement. Of course, the wealthy and politically well-connected weren’t about to tolerate police poking around their mansions’ medicine cabinets or showing up at private school parties—where illegal drugs are just as likely to be found as in public housing projects—so police naturally focus enforcement against communities with the least wealth and political power, which, due to the history of explicit racial discrimination and subordination in this country, tend to be poor and black.

Prosecution

Once arrested, the criminal justice system is prejudiced against black defendants in a number of ways. Most obviously is with the law itself. For example, until the Fair Sentencing Act of 2010, sentences were 100 times harsher for possession of crack cocaine (common among black drug users) than for powder cocaine (common among whites). Likewise, mandatory minimum sentences—which send people to prison for long stretches even for minor or first-time offenses—tend to be much longer for “black” crimes like marijuana possession than for “white” crimes like drunk driving,2 even though the latter is far more costly to society. This leads black defendants to seek plea bargains rather than defend themselves in court, even when they’re not at fault.

When a black defendant does wish to defend themselves, I was surprised to learn that they’ll often get no help. Black defendants tend to be poorer, and despite the Miranda rights you may remember from Law & Order, not everyone is actually entitled to a public defender. In Wisconsin, for example, anyone earning over $3,000 per year is considered able to afford a lawyer, even though a criminal defense lawyer may well cost more than that year’s salary.

Black defendants are also less likely to encounter empathetic lawyers, judges, and juries, as most defenders, prosecutors, and judges are white. Furthermore, convicted felons are often barred from serving on juries, meaning those targeted by the system are unlikely to be judged by anyone who understands their situation.

Finally, as with enforcement, prosecutors (especially those up for reelection) are incentivized to seek harsh sentences in order to appear “tough on crime.” Because it’s politically impractical to do so at the cost of their well-connected friends, prosecutors are incentivized to target the most vulnerable and politically powerless, who tend to be black for the obvious historical reasons.

Life After Prison

Even after serving their time, those convicted of felonies—who may be nonviolent offenders that happened to be caught with marijuana a few times—have the deck stacked against them as they struggle to re-integrate into society.

Imagine you just got out of prison: what are your priorities? Probably housing while you look for work, and maybe education to improve your chances. Well, those with felony records are barred from public assistance with housing and education, removing the essential support they might need to get back on their feet after serving time.

You’d need a job to support yourself, however those with felony records are frequently discriminated against when applying for jobs, due to the familiar “Have you ever been convicted of a felony?” checkbox. (Though some advocates are trying to change this.) This is on top of existing discrimination, with studies showing that white employers are more likely to hire white felons than black non-felons. It being hard enough to find a job with a felony record, maybe you would start your own business? Sorry, with a felony record you’re often prohibited from obtaining a business license as well.

So no help with housing, education, or work—what can you do? Vote to make the system more humane? Good luck. It differs by jurisdiction, but those with felony records are frequently barred from voting, meaning communities who’ve been targeted by the system because they have the least political power end up having even more political power taken away.

The New Jim Crow

This is, of course, not the first time there has been a system in America designed to make black Americans into second-class citizens. Consider the case of Jarvious Cotton:

Jarvious Cotton cannot vote. Like his father, grandfather, great-grandfather, and great-great-grandfather, he has been denied the right to participate in our electoral democracy. Cotton’s family tree tells the story of several generations of black men who were born in the United States but who were denied the most basic freedom that democracy promises—the freedom to vote for those who will make the rules and laws that govern one’s life. Cotton’s great-great-grandfather could not vote as a slave. His great-grandfather was beaten to death by the Ku Klux Klan for attempting to vote. His grandfather was prevented from voting by Klan intimidation. His father was barred from voting by poll taxes and literacy tests. Today, Jarvious Cotton cannot vote because he, like many black men in the United States, has been labeled a felon and is currently on parole.

Many who read this will respond with some form of “But this time it’s different.” After all, the system is officially colorblind, right? And there are black cops, police chiefs, and prosecutors who are a part of it. But such thinking reflects a fundamental misunderstanding of how systemic racism works, which is Alexander’s most important point of all:

Of all the reasons that we fail to know the truth about mass incarceration, though, one stands out: a profound misunderstanding regarding how racial oppression actually works. If someone were to visit the United States from another country (or another planet) and ask: Is the U.S. criminal justice system some kind of tool of racial control? Most Americans would swiftly deny it. Numerous reasons would leap to mind why that could not possibly be the case. The visitor would be told that crime rates, black culture, or bad schools were to blame. “The system is not run by a bunch of racists,” the apologist would explain. “It’s run by people who are trying to fight crime.” That response is predictable, because most people assume that racism, and racial systems generally, are fundamentally a function of attitudes. Because mass incarceration is officially colorblind, it seems inconceivable that the system could function much like a racial caste system. The widespread and mistaken belief that racial animus is necessary for the creation and maintenance of racialized systems of social control is the most important reason that we, as a nation, have remained in deep denial.

The Purpose of Segregation

So why, time after time, does the specter of racial caste in America keep coming back? Why do those in power keep creating such systems, and why do white citizens continue to allow them? The answer, as to any big social question, is unimaginably complicated. But looking at the history of racial caste systems in this country, a significant part of it is obvious: wealth and power.

Since before American independence, the powerful have exploited poor whites and blacks alike, which they justified by telling poor whites that at least they’re not as bad off as blacks, and as such they’ve had to deliver on that promise. In the wake of Bacon’s Rebellion of 1675, when a multiracial coalition rose up against their political betters, the white planter aristocracy sought to divide them through a kind of “racial bribe”:

Deliberately and strategically, the planter class extended special privileges to poor whites in an effort to drive a wedge between them and black slaves. White settlers were allowed greater access to Native American lands, white servants were allowed to police slaves through slave patrols and militias, and barriers were created so that free labor would not be placed in competition with slave labor.

These conditions lasted explicitly through the end of the Civil War, but the rise of a broad-based populist movement toward the end of the 19th century again brought conditions that united poor black and white citizens in the struggle for greater economic equality:

[Populism] offered, for many African Americans, the most promise. It was predicated on a searing critique of large corporations, particularly railroads, and the wealthy elite in the North and South. The radicals of the late nineteenth century, who later formed the Populist Party, viewed the privileged classes as conspiring to keep poor whites and blacks locked into a subordinate political and economic position.

Whether out of generosity or canny strategy, white populists made racial equality a plank in their platform:

In an effort to demonstrate their commitment to a genuinely multiracial, working-class movement against white elites, the Populists made strides toward racial integration, a symbol of their commitment to class-based unity. African Americans throughout the South responded with great hope and enthusiasm, eager to be true partners in a struggle for social justice. According to Woodward, “It is altogether probable that during the brief Populist upheaval in the [eighteen-]nineties Negroes and native whites achieved a greater comity of mind and harmony of political purpose than ever before or since in the South.

Sensing a threat to their monopoly on wealth and power in America, the white elite responded with yet another racial bribe: the “Jim Crow” laws which gave poor and middle-class whites the illusion of higher social status by forcing black Americans into a lower one:

Segregation laws were proposed as part of a deliberate effort to drive a wedge between poor whites and African Americans. These discriminatory barriers were designed to encourage lower-class whites to retain a sense of superiority over blacks, making it far less likely that they would sustain interracial political alliances aimed at toppling the white elite.

And yet, black Americans persisted in the struggle for equality through the Civil Rights Movement of the 1960s. Despite repeated betrayals by poor whites, the movement again reached out to them, seeking to form a multiracial alliance which Dr. Martin Luther King called the Poor People’s Campaign:

As historian Gerald McKnight observes, “King was proposing nothing less than a radical transformation of the Civil Rights Movement into a populist crusade calling for redistribution of economic and political power. America’s only civil rights leader was now focusing on class issues and was planning to descend on Washington with an army of poor to shake the foundations of the power structure and force the government to respond to the needs of the ignored underclass.”

King was in Memphis in support of striking sanitation workers when he was assassinated, putting an eventual stop to the Poor People’s Campaign.

As the historical record shows, any time over the past 400 years a multiracial coalition of poor and working-class people has threatened to challenge the American elite’s hold on the lion’s share of wealth and power, a racial caste system has emerged to divide that coalition along racial lines. It’s the same old story—mass incarceration is just the most recent chapter.

But it’s the chapter we happen to be living through.


To learn more, I cannot recommend Michelle Alexander’s The New Jim Crow strongly enough. It’s an approachable, eye-opening, and thoroughly-cited history. For a shorter introduction, Alexander gave an excellent interview to the On Being podcast with a more personal take on the book.

Footnotes

  1. This 2016 article from the Pulitzer Prize-winning fact-checking project Politifact gives a good summary of the relevant research. 

  2. The author: “The vastly different sentences afforded drunk drivers and drug offenders speaks volumes regarding who is viewed as disposable—someone to be purged from the body politic—and who is not. Drunk drivers are predominantly white and male. White men comprised 78 percent of the arrests for this offence in 1990 when new mandatory minimums governing drunk driving were being adopted. They are generally charged with misdemeanors and typically receive sentences involving fines, license suspension, and community service. Although drunk driving carries a far greater risk of violent death than the use or sale of illegal drugs, the societal response to drunk drivers has generally emphasized keeping the person functional and in society, while attempting to respond to the dangerous behavior through treatment and counseling. People charged with drug offenses, though, are disproportionately people of color. They are typically charged with felonies and sentenced to prison.”