Race and America’s Criminal Justice System

Michelle Alexander’s recent book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness,[1] may well be the most important analysis of the current state of human rights and racism in American society since W.E.B. Dubois wrote The Souls of Black Folk at the turn of the twentieth century.[2] In it, Alexander, a distinguished professor at the Moritz College of Law at Ohio State University and the former Racial Justice project director for the ACLU of Northern California, argues that the mass incarceration of black and brown men in the United States amounts to a complex system of racial control with uncomfortable and uncanny parallels to Jim Crow, both in terms of its scale and the real life consequences for people of color, African Americans in particular. In fact, under the auspices of the War on Drugs, the United States incarcerates black men at nearly six times the rate that the internationally reviled white supremacist South African regime did at the height of apartheid.[3] Today, there are more African Americans under correctional control?in prison or jail, on probation or parole?than there were enslaved in 1850, more than ten years before the Civil War began (p. 175). In major cities, large majorities of black men have been branded felons for life?mostly for minor, nonviolent drug offenses?effectively locking huge sectors of the black community into a permanent second-class status where they are legally discriminated against in all the same ways that their grandparents were during Jim Crow, including access to housing, employment, and public benefits, not to mention systematic exclusion from juries, denial of the right to bear arms, and denial of the right to vote, all in accordance with the law.

Racial Caste Reborn

One of the major themes in The New Jim Crow is that racial caste in America is an institution that has persisted over the years by evolving?through conscious policies and political campaigns?in order to adapt to serious challenges to its legitimacy. In addition to exploring the birth of Jim Crow following the overthrow of chattel slavery and the end of Reconstruction, Alexander meticulously chronicles the repackaging and development of a new system of racial caste in our officially colorblind society following the social and political gains of the Civil Rights Movement. The disintegration of Jim Crow in the South left millions of whites feeling marginalized, disenfranchised, and resentful over desegregation, affirmative action, and the imposition of new laws and values on “their” society. According to one of his top advisors, Richard Nixon emphasized that “the whole problem is really the blacks. The key is to devise a system that recognizes this while not appearing to” (p. 43). In an attempt to get Southern whites to break with the Democratic Party?with which they had been largely aligned since Roosevelt’s New Deal?Republican administrations began making racially coded appeals to white voters on issues of “crime,” “law and order,” and “welfare.” This brand of officially colorblind racial politics culminated with President Reagan’s declaration of the current “War on Drugs” in 1982; a “war” waged despite the fact that only two percent of Americans considered illegal drugs to be a major issue at that time. Moreover, contrary to popular belief, drug crime in the early ’80s was on the decline. When crack-cocaine hit the streets a few years later, however, Reagan administration officials seized the opportunity to zealously promote drug war policies by waging a massive publicity and propaganda campaign highlighting black crack abusers and related violence, which Alexander points out, became a media sensation (pgs. 51-4). This was, of course, the purpose of the War on Drugs: to put African Americans back in their place on the racial hierarchy. In the ensuing decades, countless billions of federal dollars and advanced weaponry poured into the coffers and arsenals of state and local law enforcement agencies specifically to help launch the drug war in inner cities. Lawmakers joined in the hysteria by passing extreme mandatory minimum sentencing laws, often harshly targeting drugs associated with inner-city blacks rather than middle-class whites.

For his part, President Clinton signed the biggest law enforcement bill in American history and ushered in unprecedentedly cruel “one strike” penalties for ex-felons, banning them from public housing and food stamps for life (pgs. 55-7). Clinton, whom Alexander credits with having done more to create today’s racial caste system than any other president, also oversaw the biggest expansion of the prison system in the history of the United States (p. 56). Mass incarceration quickly became a bipartisan set of policies and has since been set on cruise control?if not acceleration?by successive administrations, including the current one (pgs. 238-41).[4] The result? The prison population in the U.S. has increased from 300,000 in 1980 to nearly two and a half million today?by far the biggest prison population of any country in the world, both proportionally and numerically. Crucially, drug offenses account for two-thirds of the increase in federal prisoners and over half of the increase in state prisoners (p. 59).

Rounded up, Locked up, and Locked out

Alexander likens mass incarceration to slavery and Jim Crow on the grounds that each racial caste system functions as a “tightly networked system of laws, policies, customs, and institutions that operate collectively to ensure the subordinate status [of African Americans]” (p. 13). Mass incarceration, she continues, can be largely understood as functioning in three distinct phases: rounding up men of color, placing them under formal correctional control, and branding them as felons for life (pgs. 180-2). While the author thoroughly and carefully takes into account a great many variables in the book, including history, politics, and legal precedents, it is worth briefly examining here the three distinct phases she highlights.

Police agencies have a tremendous amount of discretion when it comes to enforcing drug laws. Countless studies of policing practices across the country consistently reveal enormous?almost pathological?racial biases against black and brown men. This is especially true with the War on Drugs despite the fact that blacks and Latinos are no more likely to use or sell illegal drugs than their white counterparts. With the blessing of the courts, police officers are encouraged to stop massive amounts of people?whether driving or walking?to conduct searches, or fishing expeditions, for drugs. The vast majority?upwards of 80 to 90 percent?of those targeted have been people of color. In cities like New York, this translates into over one thousand black and brown men being arbitrarily searched and harassed every day according to the NYPD’s own figures. Many city police departments across the U.S. also keep mass biographical databases of racial minorities irrespective of crime. Rationalized as a means of monitoring “gangs” and “crime,” the databases seek to build profiles on anyone “using slang” or wearing “baggy” pants (read: any person of color). In Los Angeles and Denver, for example, it has been revealed that the vast majority of blacks and Latinos residing in these cities were on mass databases of suspected criminals (pgs. 131-4). As Alexander points out, the courts have essentially closed the doors to claims of racial discrimination (absent an admission of racial hatred on the part of officials, McCleskey v. Kemp, 1987, p. 106-9, 189) with the Supreme Court going so far as to declare race to be a legitimate?if not determinative?factor in police discretionary decision making (United States v. Brignoni-Ponce, 1975, pgs. 128-33).

Incarceration rates dramatically reflect racist policing patterns and political priorities. Because the quintupling of the prison population is largely a result of incarcerating black and brown drug offenders, the majority of prisoners today are locked up for nonviolent offenses. And despite the fact that blacks are no more likely (and perhaps less likely) than whites to engage in drug use or sales, in many states blacks have been sent to prison on drug charges at rates ranging from twenty to nearly sixty times the rate of whites?a pattern which fundamentally holds true for adolescent offenders as well. In Illinois, for example, blacks are less than twenty percent of the state’s drug users and sellers, but constitute 90 percent of all incarcerated drug offenders. As a nation, whites are the overwhelming majority of drug users and sellers yet the vast majority?75 percent?of all drug offenders sent to prison are black or Latino (pgs. 96-7).

It is no surprise then that one in every three young black men in America is either locked up or on probation or parole; nationwide, the figure is nearly 50 percent when those who have been permanently labeled as felons are included.[5] It should be emphasized that the status of those on probation and parole?especially the latter?is equivalent to having no civil rights; often times the slightest infraction?for example, missing an appointment or failing to find a job?is enough for the state to tear the individual from his family and community and lock him in a cage for months or even years (p. 93). For many inner-city communities, prison has become the rule rather than the exception. To cite just one example, in Washington DC, three out of every four young black men?irrespective of class?can expect to be incarcerated (p. 159). At the current rate of incarceration, one out of every three black male babies born at the turn of the 21st century will end up in prison.[6] Today, due largely to the mass incarceration of black men, an African-American child is less likely to be raised by both parents than a black child born during slavery (p. 175) and almost ten times more likely than white children to have a parent incarcerated.[7]

Once branded a felon, individuals are permanently relegated to a second class status. Drug felons specifically are banned from receiving subsidized loans for college. All felons are banned from public housing and can be legally discriminated against in private housing. They are also required by law to “check the box” on job applications and employers are entitled to legally discriminate against them. In fact, surveys show the vast majority of employers admit that they will not consider hiring a felon. Barred from affordable housing, educational opportunities, and shut out of the job market, felons also lose the right to eat; they are banned from receiving food stamps for life. In addition to losing the right to possess firearms, felons are completely excluded from serving on juries; because of this, fully 30 percent of black men in America have been automatically excluded from serving on juries (p. 119). This is in addition to Supreme Court rulings which allow courts to, in practice, systematically exclude blacks from juries for admittedly “silly” and “superstitious” reasons which serve as legal cover for maintaining the all-white jury, which is and always has been a staple institution in American life (pgs. 188-9). Perhaps worse yet, felon disenfranchisement laws deny the right to vote to millions of African Americans across the country. In fact, as of 2004 more black men were disenfranchised than in 1870, which was the year the fifteenth amendment was ratified which outlawed the denial of voting rights to people on the basis of race (p. 175).

Racial Caste: Defining What it Means to be Black

Because mass incarceration and felony branding policies have been unjustly directed primarily at African Americans and other people of color, Alexander argues that the current system amounts to a restructuring of racial caste in America. This charge is not without merit; in cities and states where African Americans are highly concentrated, huge majorities of black men have been locked up and/or labeled as felons for life?mostly for minor, nonviolent drug offenses?making it perfectly legal to discriminate against them in all of the same ways that the Jim Crow system discriminated against their parents and grandparents several decades ago. In Chicago, for example, fully 80 percent of the black male workforce has been branded felons for life. The criminalization of black men in Chicago?and black men in urban America generally?is, of course, largely a phenomenon of the War on Drugs; since 1985 the number of black men incarcerated for nonviolent drug offenses in Chicago has increased by nearly 2,000 percent (pgs. 183-5, 191). The trend generalizes across the U.S.; as of the year 2000, on a national level African American incarceration for drug offenses represented a 26-fold increase since 1985 (p. 96). Much in the same way that segregation and ghettoization of African Americans in the North was the result not of market forces nor human nature but rather the outcome of specific federal and local policies designed for those ends, mass incarceration is the result of deliberate policy choices aimed at strengthening the historical racial order in America, ensuring that African Americans remain in a subordinate and stigmatized position on the social and racial hierarchy.[8]

The policies of mass incarceration?coupled with paralleled, racialized political and media campaigns?in recent decades have served to define in racial terms what it means to be a criminal. As Alexander points out, every system of racial caste in America has had as its primary function, the ability to define the meaning of race in its time (pgs. 192-5). During slavery, to be black was to be a slave and to be black under Jim Crow was to be a second class citizen. In the age of mass incarceration, to be black?and this is especially true for men?is to be a criminal (pgs. 192-5). In our society, the racialization of what it means to be a criminal amounts to the stigmatization of African Americans as a group. The War on Drugs has been the primary vehicle for creating both the on-the-ground reality as well as, in part, the ideological foundations for racial caste in an America that is officially colorblind; although all studies show that the majority white population is just as likely?perhaps even more so?to engage in drug use and sales, black men?and to a lesser degree, Latinos?are the ones who have been targeted, incarcerated, and branded as criminals en masse. While whites who have been branded as felons surely experience the stigma associated with incarceration, their stigma is by no means a racial stigma; the term “white crime” is unfathomable and nonexistent while “black criminal” is nearly redundant (p. 193). In fact, Alexander insists that the fact that blacks “only” comprise 80 or 90 percent of those incarcerated for drug offenses in some states?instead of 100 percent?actually serves to reinforce the legitimacy of racial caste in an officially colorblind society; the exception that justifies the rule (pgs. 198-9).

As a system of racial caste, mass incarceration doesn’t just apply to those officially branded as felons. “Just as African Americans in the North were stigmatized by the Jim Crow system even if they were not subject to its formal control,” Alexander writes, “black men today are stigmatized by mass incarceration?and the social construction of the “criminalblackman”?whether they have ever been to prison or not” (p. 194). This is evidenced in part by dominant media and cultural narratives, institutionalized (and legalized) racial profiling, and police efforts to build mass databases of “suspected criminals” which contain information almost exclusively on racial minorities who have often done nothing criminal at all aside from having been born to black and brown parents. In addition to the numerous studies showing that most white Americans see crime in racial (nonwhite) terms, studies conducted by Princeton University also reveal that white felons fresh out of prison are more likely to get hired for jobs than equally qualified black men with no criminal record.[9] African American men without criminal records are more ostracized and widely perceived as being more criminal than white men who have actually been convicted of felony crimes. That is how deeply black people have been stigmatized as criminals and social pariahs in our society. Whole black communities have been stigmatized by the presence of felons in their midst and black men have, Alexander aptly observes, become “the new untouchables” (p. 194). Worse yet, Alexander contends that the racial solidarity which existed to a substantial degree among blacks during Jim Crow has been significantly destroyed by mass incarceration: “[T]he shame and stigma of the ‘prison label’ is, in many respects, more damaging to the African American community than the shame and stigma associated with Jim Crow. The criminalization and demonization of black men has turned the black community against itself, unraveling community and family relationships, decimating networks of mutual support, and intensifying the shame and self-hate experienced by the pariah caste” (p. 17).

The campaign of drug criminalization in recent decades begs comparisons to the birth of Jim Crow in the late nineteenth century. Following Reconstruction, white Southerners sought to reestablish the white supremacist racial order but were constrained in doing so by new realities imposed by the federal government, including the abolition of chattel slavery. Lawmakers instead chose to criminalize minor offenses which were often colorblind on paper, such as loitering, vagrancy, “using obscene language,” and so forth, in order to establish pretexts for imprisoning black men and forcing them back on to the plantations via contracted prison labor?a vast system of re-enslavement through mass incarceration which was, in many respects, worse than traditional slavery.[10] While Jim Crow eventually included many laws explicitly discriminating on the basis of race, a major part of this racist system centered on how seemingly race-neutral laws were enforced and who was targeted. This was true for disenfranchising black voters as well. Because the federal government outlawed denying the vote to citizens on the basis of race, southern officials introduced ostensibly colorblind literacy tests and poll taxes, but everyone knew that the laws were aimed at black folks and were almost exclusively enforced accordingly to achieve that end. The War on Drugs is similar; initiated largely by the federal government, the drug war policies have criminalized minor offenses and activities?drug use and sale?which exist in all human societies and exist equally across racial lines in America, and took care to enforce these laws overwhelmingly against blacks and other racial minorities.

The New Jim Crow does an excellent job of dispelling common myths often cited to explain in colorblind terms the reasons for the mass incarceration of African Americans. In addition to setting the record straight on the prevalence of drug activity along racial lines, Alexander also explains that the War on Drugs has not been waged in poor communities of color because of higher rates of violent crime among poor blacks. Comparatively speaking, higher rates of violent crime in black communities is independent of drug activity and has very little to do with the recent prison boom; citing William Julius Wilson’s When Work Disappears, Alexander notes that rates of violent crime are directly related to concentrated joblessness.[11] When the racial disparity in joblessness is accounted for, violent crime rates for blacks and whites are virtually indistinguishable (p. 50). Moreover, the drug war is expressly not aimed at reducing violent crime or even going after drug kingpins; the main purpose is to amass high volumes of arrests and obtain as many convictions as possible?the vast majority of which are possession charges for small amounts of marijuana and other drugs.

How Does it Feel to be a Problem?

Like slavery and Jim Crow, mass incarceration is all but invisible to whites in the sense that it appears completely normal and doesn’t directly affect most white communities.[12] In fact, in recent years it has become almost clich??though indeed accurate?to observe that the number of black men in prisons has drastically eclipsed the number of black men in college; before the current drug war, in 1980, however, black men in college outnumbered black men in prison by a ratio of three to one.[13] Consider the militarization of policing, paramilitary-style sweeps of entire neighborhoods, routine violence and police brutality, constant, arbitrary, and humiliating searches and invasions: such a violent campaign of dehumanization and oppression could never feasibly target white drug users and dealers on college campuses and in the suburbs as it has black and brown citizens in the inner city (pgs. 199-202). Yet whites overwhelmingly take mass incarceration and racial caste?though not by those names?for granted, as if the wholesale imprisonment and stigmatization of blacks is something natural or inevitable; after all, crime?and therefore, mass incarceration?is a black problem. In The Souls of Black Folk, written in 1903, W.E.B. Dubois describes the prevailing attitude of whites towards African Americans in the terms of an implicit question whites often leveled at blacks on the issue of race: “How does it feel to be a problem?”[14] Today when whites talk about getting “tough on crime” and when they call on African American leaders?or when such “leaders” do so voluntarily?to take the black community to task for alleged cultural deficiencies supposedly at the heart of African American social and economic problems, they are essentially saying the same thing as the whites of Dubois’ era: “How does it feel to be a problem?”

The “sprinkling” of a select few of people of color in universities, the government, corporations, television?and even in the White House?helps to perpetuate the myth of racial equality and “black progress”?a loaded and historically insulting term?in post-Civil Rights era America. While nobody can deny that great gains have been achieved as a result of popular activism led by African Americans in the 1950s and ’60s, the painful reality is that in many key respects, the black community in America is no better off?and in some respects, worse off?than it was in 1968 when Martin Luther King Jr. was assassinated (pgs. 233-6). Schools are more segregated and unequal today than they were in 1950; residential housing is more segregated in the Midwest and Northeast than in the South.[15] Poverty rates in the black community remain high and have changed little, especially if prisoners are included. Among black children, poverty rates have actually increased, according to Alexander (p. 233). Joblessness continues to be disproportionately high for African Americans, notably young black men, of which one in three are unemployed (p. 149). For those who don’t complete high school, the rate of joblessness soars to 65 percent (p. 149). Rampant police brutality in the black community continues to persist. And of course, incarceration of black men?and black women for that matter?is at all time, astronomical highs.

In The New Jim Crow, Michelle Alexander brilliantly and systematically lifts from readers’ eyes the veil of colorblind rhetoric, affirmative action, and tall tales of progress and equality in America and urges us to face the racial nightmare and human rights catastrophe that has been taking place on our watch. While impeccably documented and full of careful legal analysis, this is not a book so much for lawyers as it is for regular people who care about justice and freedom. The New Jim Crow is above all, a movement-building book. And considering what is at stake, nothing short of a militant, mass based civil rights style movement can hope to dismantle mass incarceration and racial caste in America once and forever.

MAX KANTAR is an independent writer and Michigan-based human rights activist. He can be reached at maxkantar@gmail.com.


[1] Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2010). References to specific information in the book throughout this review will be cited parenthetically in the text.

[2] W.E.B. Dubois, The Souls of Black Folk 3rd edition (Cambridge: University Press, 1903).

[3] This is if you include black men in both prison and jail in the US. The rate is about three and a half times higher than apartheid South Africa if incarceration rates only include those in prisons. See William J. Sabol, Todd D. Minton, and Paige M. Harrison, “Bureau of Justice Statistics: Prison and Jail Inmates at Midyear 2006” (Washington, DC: US Department of Justice, June 2007), NCJ217675, p. 9, Table 14.

[4] On Obama’s presidential record on these matters, see “The Obama Administration’s 2011 Budget: More Policing, Prisons, and Punitive Policies,” Justice Policy Institute, February 2010, http://www.justicepolicy.org/images/upload/10-02_FAC_FY2011Budget_PS-JJ-AC-BB-DP.pdf (accessed November 5, 2010).

[5] Marc Maurer and Tracy Huling, “Young Black Americans and the Criminal Justice System: Five Years Later” (Washington DC: The Sentencing Project, 1995).

[6] Gary Younge, “30% of black men in US will go to jail,” The Guardian, August 19, 2003.

[7] Bureau of Justice Statistics, “Incarcerated Parents and Their Children” (Washington, DC: US Department of Justice, August 2000).

[8] Regarding government policies which created segregation and ghettoization in the North, see Douglas Massey and Nancy Denton, American Apartheid: Segregation and the Making of the Underclass (Cambridge, MA: Harvard University Press, 1993).

[9] Devah Pager and Bruce Western, “Race at Work: Realities of Race and Criminal Record in the NYC Job Market” (Princeton University, December 9, 2005). For online access see http://www.princeton.edu/~pager/).

[10] Douglas A. Blackmon, Slavery by Another Name: The Re-Enslavement of Black People in America from the Civil War to World War II (New York: Anchor Books, 2009).

[11] William Julius Wilson, When Work Disappears: The World of the New Urban Poor (New York: Vintage Books, 1997).

[12] There is one major exception here: in recent decades, many prisons have been built in rural, predominantly white towns across America. These towns have a huge stake in mass incarceration due to the amount of jobs that prisons bring to these communities. Nonetheless, the point remains the same: prison is not a part of life for many white families, whereas in many African American communities one would be hard pressed to find families without someone currently or recently incarcerated. See Alexander, New Jim Crow, 188.

[13] Fox Butterfield, “Study Finds Big Increase in Black Men as Inmates Since 1980,” New York Times, August 28, 2002.

[14] Dubois, The Souls, 1-2.

[15] Gary Orfield, “Reviving the Goal of an Integrated Society: A 21st Century Challenge,” The Civil Rights Project, UCLA, January 2009, http://civilrightsproject.ucla.edu/ (accessed November 5, 2010); Jonathon Kozol, The Shame of the Nation: The Restoration of Apartheid Schooling in America (New York: Random House, 2005); “American Urban Segregation,” BlackDemographics.com, http://www.blackdemographics.com/geography.html (accessed November 5, 2010).