The New Jim Crow
Encyclopedia
The New Jim Crow is a 2010 book and a name given to a category of race-related
social and political phenomena in the United States
by Michelle Alexander
, a civil rights litigator and legal scholar. Alexander deals in the book primarily with the issue of the current mass levels of incarceration (the United States, with 5% of the world's population, has 25% of the world's prisoners) and other means of societal suppression of African-American
men (Latino
men to a lesser degree), and the social consequences of the policies described, for the "people of color" and for the country as a whole.
According to Alexander, the majority of young black men in large American cities are "warehoused in prisons" (their labor no longer needed in the globalized economy
) or, after having criminal records and labeled as "felons", permanently trapped in a second-class status
. The communities of color are targeted and decimated by the U.S criminal justice
system, with the War on Drugs
being the primary tool chosen by the establishment intent on continuation of many of the traditional and new forms of discrimination, discrimination, which according to the conventional point of view, had mostly ended with the Civil rights movement
reforms of the 1960s
.
In an article addressing the status of contemporary African Americans, Alexander said, "The clock has been turned back on racial progress in America, though scarcely anyone seems to notice. All eyes are fixed on people like Barack Obama and Oprah Winfrey who have defied the odds and achieved great power, wealth and fame". Alexander sees the masses of ordinary African Americans as being relegated to the status of a "racial caste", even though the official approach to dealing with the minorities
has been redesigned, to avoid explicit use of racial attributes. According to Alexander, the forms of "racial control" evolve as required by changing political circumstances and contemporary standards, with the current "criminal justice" activities replacing the Jim Crow laws
, which in turn had replaced slavery. Michelle Alexander aims to mobilize the civil rights community to move the incarceration issue to the forefront of its agenda and to provide factual information, data, arguments and reference for those interested in pursuing the issue. Her broader goal is the revamping of the prevailing mentality regarding human rights
, equality
and equal opportunities in America, to prevent future cyclical recurrence of racial control under changing disguise.
, which allows the unleashing of a whole range of legal discrimination
measures (in employment, housing, education, public benefits, voting rights, jury duty etc.).
Michelle Alexander explains how it took her years to become fully aware and convinced of the phenomena she describes, despite her professional civil rights background; she expects similar reluctance and disbelief on the part of many of her readers. She found the problems besetting African American communities to be not merely a passive and collateral function of factors such as poverty or lack of educational opportunity, but a consequence of actively and purposely pursued government policies, for example the three strikes law
s. Alexander came to recognize the mass incarceration policies, which were swiftly developed and implemented, as a "comprehensive and well-disguised system of racialized control that functions in a manner strikingly similar to Jim Crow".
The "War on Drugs
", presented later by the media as the authorities' response to the crack cocaine
crisis in black ghettos, was officially announced by the government of Ronald Reagan
in 1982. Crack cocaine emerged in inner city neighborhoods beginning in 1985/1986 and the problem was highly publicized by the Reagan administration in order to generate support for the drug war. The extraordinarily successful media campaign made the enormous expansion of the law enforcement anti-crack activities possible. The intensity of the government assault caused many in the black community to believe in conspiracy theories
and speculate about genocidal government plans to destroy the black people in the USA. In 1998 the CIA
admitted that the faction supported by the US
in its covert war in Nicaragua was involved in smuggling illegal drugs into the USA. Efforts to uncover those activities were blocked.
The War on Drugs
has had a devastating impact on the African American communities, on a scale entirely out of proportion with the actual dimensions of criminal activity taking place within these communities. In less than three decades the US prison population exploded from 300,000 to more than two million (majority of the conviction increase for drug violations), resulting in the world's highest incarceration rate, exceeding the rates of a number of regimes strongly criticized by the US government as highly repressive. It is eight times the incarceration rate in Germany
, a comparatively developed large democracy
. The USA is unparalleled in the world in concentrating its penal activities on its racial/ethnic minorities. In the capital city of Washington, D.C.
three out of four young African American males are expected to serve time in prison. While studies show Americans of different races using illegal drugs quantitatively on a similar scale, in some states black men have been admitted to prisons on drug charges at the rate twenty to fifty times that of white men. The high proportion of African American men with criminal record of some sort (as many as 80% in major cities) are marginalized and a part of the growing permanent undercaste.
While historically crime and punishment intensities have often been poorly correlated, the scale and lack of balance of the present USA criminal justice activity and penal system have turned it, according to Alexander, into a system of social control unparalleled in world history. Its targets can be defined largely by race. The rate of incarceration in the US has soared, while its crime rates have generally not been higher than those in other western countries, where the incarceration rates accordingly have remained stable. The current rate of incarceration in the USA, six to ten times greater than in other industrialized nations, is therefore not related to the actual rates of crime or their increase, but can be traced to a great extent to the artificially invoked War on Drugs discriminatory policies. In 1973 the National Advisory Commission on Criminal Justice Standards and Goals of the Justice Department
stated that there is overwhelming evidence that prisons and jails create crime rather than prevent it, and recommended no further construction of adult facilities, combined with elimination of the existing juvenile centers. Actual developments went in the exactly opposite direction, as the USA embarked on an unprecedented in human history expansion of its prison system.
The civil rights community has been reluctant to get involved in this issue, concentrating first of all on protecting the threatened affirmative action
gains, that is the access of their best and brightest to the nation's top universities. At the other end of the African American social spectrum is the one third of all black young men, who are under active control of the criminal justice system, currently in jail, on probation or on parole. Criminal justice was not on the list of top priorities of the Leadership Conference on Civil Rights in 2007 and 2008 or of the Congressional Black Caucus
in 2009. NAACP
and ACLU
have been involved in legal action and grassroots campaigns have been organized, but Alexander feels that generally there is a lack of appreciation of the enormity of the crisis. According to her, mass incarceration is "the most damaging manifestation of the backlash against the Civil Rights Movement", and those who feel that the election of Barack Obama
represents the ultimate "triumph over race" ("the widespread belief that race no longer matters") are dangerously misguided.
The persistent racial inequality, which has created more than an underclass, a rigid caste system, is hidden from view, invisible within a maze of rationalizations. Mass incarceration (author's emphasis) is its most salient manifestation. The racial caste term Alexander employs to denote a "stigmatized racial group locked into inferior position by law and custom", as it is commonly used in scientific literature. By "mass incarceration" she means the criminal justice system together with the larger web of laws, rules, policies and customs, racial stigmatization and permanent marginalization, to which it serves as a gateway. The members of the new undercaste, once released from prison, face a "hidden underworld of legalized discrimination and permanent social exclusion".
We (Americans) are, says Alexander, ashamed of our racial history, and therefore avoid talking about race, or even class, and the terms used here to many will seem strangely unfamiliar. Americans want to believe that everybody is in principle and practically capable of upward mobility, given enough effort on his or her part; this assumption forms a part of the national collective self-image. African Americans are prevented from joining this mobility process by law and the resulting institutional discrimination. The ostensibly colorblind system produces the undercaste, defined largely by race and forming a huge percentage of African Americans.
The existence of this system is not disproved by the election of Barack Obama and other African American exceptional achievement, but to the contrary, it depends on such factors. It does not require overt racial hostility or bigotry
, indifference serves its purpose. The New Jim Crow system relies on the underlying racial ideology, will not be significantly disturbed by half-measures such as laws mandating shorter sentences, and like its predecessors has been largely immunized from legal challenge. "A human rights nightmare is occurring on our watch" and it cannot be dealt with effectively without the phenomenon being recognized by a broad social consensus; at the moment such awareness is lacking. To many the problem may seem too daunting and intractable. The New Jim Crow book is intended to stimulate a much-needed national conversation "about the role of the criminal justice system in creating and perpetuating racial hierarchy in the United States".
To secure their long-term interests and establish a social alliance, slave-owning
planters introduced arrangements that improved, to a limited degree, the situation of poor whites. Poor whites were offered some practical privileges, labor deals and assurances of their superior, in relation to black slaves, position; such inter-white social contract was later referred to as a "racial bribe".
The original United States Constitution
, while using colorblind language, sanctioned the slavery, which was the condition of the southern states
for joining the Union. Those who were not free persons were defined as three-fifths of a person for the purpose of numerical apportioning of congressional
representation.
Slavery ended with the American Civil War
, which was followed first by the defeated southern states attempting to reassert their racial controls through a variety of legal measures. Then however the constructive and fundamental amendments
to the Constitution
and federal
civil rights legislation
of the Reconstruction Era were passed. As a result, while the protected by the federal authority and troops African Americans were making unprecedented political gains (in 1870 at least 15% of all southern elected officials were black), the southern states began formulating and implementing their new comprehensive policies aimed at maintaining the racial order through the separation of races
. The Reconstruction's absence of land reform
had prevented the southern blacks from achieving meaningful economic and lasting social progress.
The Reconstruction was followed by a white backlash and the so-called Southern Redemption, a movement that resulted in the withdrawal of federal troops from the South and the federal government ceasing its enforcement activity there (1877). The former slavery states were free to impose a number of punitive legal measures. They put into common use practices such as convict leasing
, tailoring the criminal justice
system for the purpose of repressing the African American population.
In the 1880s and 1890s many southern blacks came under the influence of the conservative and radical philosophies, each offering a different path and scope for the realization of black social gains. The radical Populist Party was able to put together a formidable and unprecedented alliance of blacks and poor whites, before it succumbed to mounting political pressures and abandoned its interracial coalition efforts. The Populist attempts and successes were countered by campaigns of terror and white supremacy and by the actions of southern establishments, which adopted racially restrictive laws across many states. The new laws imposed segregation and black disenfranchisement in countless areas of economical, governmental, educational, public and social activity. This new, mature system of oppressive control and racial order, known as the Jim Crow
, was fully implemented by the turn of the twentieth century. It secured the support of lower-class whites by offering them a "racial bribe" of the largely psychological, privileged (segregated from black people) status of racial supremacy and by eliminating African Americans as a viable political ally.
The Jim Crow system functioned undisturbed throughout the South for several decades. Gradual change arrived in the aftermath of World War II
, with the first Supreme Court
decisions outlawing racial segregation and exclusion in some instances. The celebrated landmark case of Brown v. Board of Education
was decided in 1954. The forced desegregation of southern schools was met with discriminatory state legislative actions and violent opposition among the white southern populace. The faltering desegregation process was however saved, as a mass grassroots
Civil Rights Movement led by Martin Luther King, Jr.
came into prominence and was able to reassert itself in the yearly 1960s. The determined civil rights struggle led to President John F. Kennedy
's announcement in 1963 of a major new civil rights legislation being prepared. After Kennedy's death the political leadership of the civil rights federal activity was assumed by President Lyndon B. Johnson
, whose support and determination were essential in engineering and helping to push through the Congress the two most important legislative acts, the Civil Rights Act of 1964
and the Voting Rights Act of 1965. The Jim Crow was officially, and as it turned out also in practice, dismantled.
At that time Dr. King and others in the civil rights community were becoming increasingly conscious of and preoccupied with the economic aspect of the civil rights struggle. Widespread poverty was now the minority
's greatest hardship and an obvious impediment to the attainment of equality and further social gains. The activists advocated switching emphasis in part from the political and personal rights to the war on poverty
and economic empowerment, the subjects also embraced by presidents Kennedy and Johnson. The multiracial class issue of wealth redistribution and the building of interracial coalitions were seen by King as the next frontier in the "human rights movement".
The white right wing
, in process of regrouping and searching for its response to the collapse of the established racial control system in America, had a different version of future in mind. Adapting to the new reality they looked for ways of rebuilding the conservative social order ("putting the vast majority of blacks back in their place"), while conforming to the formally race-neutral language and learning to live within the new limits of acceptable political discourse.
From the 1950s, the rhetoric of "law and order" gradually replaced the rhetoric of segregation among the right wing activists, especially politicians, who demanded tough punitive legislation and police action. During the civil rights era, the campaign of disobedience and the acts of social violence, such as the riots of 1964, were presented as newly-prevalent lawlessness that had to be dealt with harshly, but was treated with excessive lenience by liberals, including federal courts. The increasing at that time crime rate and white fears were exploited by one of the founders of the modern US conservative movement, Barry Goldwater
, during his unsuccessful 1964 presidential campaign
. Politicians who opposed the civil rights acts, after their passage focused on "tough on crime" legislation, the calls for which became sanitized in terms of explicitly racial appeals. The law and order and tough on crime rhetoric proved appealing to working class whites, who were most directly affected by the government's desegregation measures and the resulting, often difficult, situation in urban centers and neighborhoods. The "anti-crime" campaign was to become the most successful and durable political tool and manipulation of the resurgent white right wing, and, together with the spontaneous white opposition to the social transformations that were taking place, led to a momentous and lasting to this day realignment of political forces in the United States.
Following the Great Depression
and Franklin D. Roosevelt
's New Deal
, the Democratic Party
became not only the representative force of the working-class whites of the North and southern whites (who had been Democrats since the Civil War because of the Democratic Party's support for the racial policies in the South), but was also popular among the blacks, who benefited from the New Deal government policies. This broad coalition remained in force until the implementation of the Republican southern strategy
, which followed the civil rights reforms and pursued a "new majority", consisting of Republican traditional support (northern upper and middle class), augmented by the now disaffected southern whites and many of the northern, traditionally Democratic whites, such as the blue-collar ethnic Catholics. Beginning with the 1968 presidential campaign
, the southern strategy was pursued by Richard Nixon
, who became adept in using "coded antiblack rhetoric" to advance his political career and his party's expansion. The success of the southern strategy depended on continuous maintenance of a racially polarized environment.
Working class whites were forced to compete on more equal bases with African Americans, suffered from the deterioration of urban neighborhoods and were susceptible to the conservative critique of the Democratic leadership as a liberal elite, out of touch with their rank-and-file. As a lasting alliance of lower class whites with the corporate and conservative establishments was being forged, the law and order presidential candidates Richard Nixon and George Wallace
in 1968 acquired 57% of the total vote. The majority of white voters in future national elections would vote Republican. The decade that followed saw a number of issues, such as civil rights enforcement, affirmative action
, busing and welfare (conservatives indirectly suggested that the blacks were refusing to work, because they preferred to live off government hand-outs) developing into intense controversies. Nixon declared illicit drugs a "public enemy number one" and declared a "war on drugs
", although no specific drug enforcement policy was yet envisioned and no right wing race and social policy consensus had yet emerged.
The conservative revolution with the political focus in the Republican Party reached its mature stage when Ronald Reagan
was elected president in 1980
. Reagan issued many implicit, but formally race-neutral appeals concerning crime, welfare, taxes and state rights and his candidacy was enthusiastically embraced by frustrated and disaffected whites; 22% of all Democrats ended up voting for him. Once elected, Reagan proceeded to fulfill his promise of enhancing the federal government's role in combating crime, which at first seemed to be no easy task, since street crime had traditionally been the area of jurisdiction and responsibility of state and local authorities. But the determination was there and the expansion of federal authority posed no difficulty for conservative politicians in this case.
The Justice Department
first announced the cutting in half of the personnel assigned to the prosecution of white-collar crime
s and switching its emphasis to street crime, especially the enforcement of illegal drug policies. In October 1982, President Reagan officially declared his administration's War on Drugs
, a political move intended to facilitate the implementation of the white right wing's informal race policies that were then assuming a definitive shape, rather than to address the (quite limited at that time) public concern about drugs.
During the 1980s the budgets of the federal departments and agencies charged with drug enforcement (e.g. the Department of Defense
antidrug allocations, Drug Enforcement Administration
, FBI) were radically increased, while the drug treatment and prevention programs (National Institute on Drug Abuse
, Department of Education
antidrug funds) suffered corresponding deep cuts. To ensure the congressional and public support for the new policies, expansion and expenditures, the Reagan administration launched a massive media campaign to promote its War on Drugs, and in particular to sensationalize the emergence of crack cocaine
in inner city
neighborhoods.
The heavy-handed federally-led enforcement activity came at the time of economic collapse and acute distress being experienced by the American ghetto
communities. Due to globalization
trends, the 1970s was the period of rapid disappearance of urban, local blue collar
manufacturing jobs on which the African-American and other less skilled workers depended. The developing service economy
and relocated industry often required higher technical abilities and costly commuting to better-off (typically suburban) districts of metropolitan areas. The approximate percentage of working black men in metropolitan areas that were holding industrial jobs fell from 70% in 1970 to 28% in 1987. The blacks, especially young, trapped in ghettos, typically lacking dependable transportation, were increasingly unemployed and desolate, under intense pressure to generate income by whatever means available.
The appearance of crack in 1985 and related violence coincided with the War on Drugs in full swing and provided the Republican administration authorities with an expedient target for a high intensity, sustained and highly successful media and political campaign, one that resulted in massive increases in congressional funding and in legal penalties for crack-related activities. The legal process was becoming more skewed against African American men in various respects, including disproportionally harsh penalties for crack, as opposed to powder cocaine, usage and dealing. The Congress passed the increasingly comprehensive and punitive Anti-Drug Abuse Acts in 1986 and again in 1988
, mandating anti-narcotic participation by the U.S. military, allowing court admission of some illegally obtained evidence and widening the scope of criminal suspects sought and penalized to include also individuals not directly involved in illicit drugs (passive associates such as roommates and family members). The acts also introduced five-year jail term first-time offender minimums for simple possession and set up a racially biased system that differentially targeted the most disadvantaged and impoverished segments of the society, and, when combined with the lax or intentionally biased enforcement practices, guaranteed the disparate racial distribution of the population incarcerated or otherwise controlled by the criminal justice system.
George Bush Sr.
played the race card during the 1988 election
: The Willie Horton
ad practically destroyed the candidacy of Michael Dukakis
. President Bush enthusiastically continued the war on drugs and other policies of his predecessor
. The white general public had embraced the race policies under the crime and drugs disguise and the formerly allied with African Americans Democrats, struggling to reclaim political control, were jumping on the "tough on crime" bandwagon; most progressives were silent on the issue. The new system of racial control, with mass incarceration as its preeminent feature, had thus become an established mainstream social reality, by the early 1990s no longer a subject of major controversy. According to the Sentencing Project
, the proportion of Americans that were imprisoned was in 1991 unmatched in history of nations of the world.
Democrat Bill Clinton
's presidency reinforced and magnified the damage inflicted on African Americans by his predecessors. He endorsed "three strikes
and you're out" federal policies, signed in 1994 a crime bill of unprecedented scope
and expanded the drug war beyond what was considered possible before; his policies resulted in the largest of any president's tenure increase in the number of inmates. By signing the Personal Responsibility and Work Opportunity Reconciliation Act, President Clinton fulfilled his promise to "end welfare as we know it" and imposed enormous further hardship on the already decimated African American communities. By the mid-1990s, no serious alternatives for dealing with the problem of the largely impoverished and marginalized minorities, beyond the "get tough" approach, were a part of mainstream political discourse and the system of "racialized social control" was firmly in place. At the turn of the twenty-first century, the New Jim Crow was operating at its full capacity, justified in race-neutral terms, but with ninety percent of those imprisoned for drug offenses in many states being a minority black or Hispanic
people.
Between 1980 and 2000, the number of people imprisoned in the United States had increased more than five times per population unit, resulting in a historically unprecedented prison-building boom. The War on Drugs is the single most important culprit and the vast majority of arrests have been made for minor offenses, such as possession of small amounts of marihuana
.
The vast expansion of police powers has been facilitated by the US Supreme Court, which has largely exempted the Drug War from the Fourth Amendment
s protections, the protections that up to that point had been upheld by the judiciary in a fairly stringent fashion. Justice Thurgood Marshall
expressed his dismay by noticing that there is no drug exception written into the Bill of Rights
, and Justice John Paul Stevens
called the Supreme Court in 1991 a "loyal foot soldier in the Executive
's fight against crime". Numerous other constitutionally protected civil liberties have been likewise compromised by the Supreme Court, which for example allowed forfeiture of property for unproven allegations of illegal drug activity. The new legal rules allow material self-interest (of law enforcement institutions) to interfere with law enforcement pursuits and judgement and make it relatively easy for law enforcement authorities to actively target anybody for virtually any reason they choose.
In the 1991 Florida v. Bostick
case, the US Supreme Court overruled the Florida Supreme Court and gave its approval to "consent searches", in which individuals approached by the police supposedly give their consent to being searched. There may be no indication of criminal activity and people typically cooperate with police "requests" because of feeling intimidated. The validation of consent searches has allowed the police to conduct large scale sweeps in public places, involving individuals they arbitrarily choose, since no reasonable suspicion of criminal activity is required on the part of the police.
In the 1996 Ohio v. Robinette
case, the US Supreme Court overruled the Ohio Supreme Court
. The Ohio court wanted to require police officers using traffic stops (motorists pulled over for alleged traffic violations) as an excuse for conducting drug searches, to tell the offenders explicitly that they are free to leave the scene if they so choose, before asking for permission for the search. The state court wished to impose a limitation on the disturbing and by that time common police practice; the US Supreme Court would have none of it. Such court rulings emboldened the police to push the limits of what they could do, without much fear of adverse legal consequences.
The federal oversight of the War on Drugs is provided by the Drug Enforcement Administration
, which in close cooperation with countless many state and local law enforcement agencies provides training and federal guidelines (e.g. appearance and behavioral profiles of those considered to be promising suspects). At the core of the method used to interdict people involved with illegal drugs are (high) volume sweeps, typically involving traffic stops and consent searches, targeting in practice individuals who give no particular cause for suspicion, but belong to disfavored groups.
Reagan Administration's announcement of the War on Drugs was initially met with some skepticism and resistance from conservative circles concerned with states' rights and from law enforcement agencies pursuing their current local priorities. The convincing took the form of a massive federal financial bribe: Huge cash grants and in 1988 the Edward Byrne Memorial State and Local Law Enforcement Assistance Grant Program
resulted in the proliferation of highway and localized narcotics task forces. The Pentagon
became involved in militarization of police departments by delivering to local governments weaponry and equipment intended originally for the defense of the country. By the late 1990s, in the context of the War on Drugs, most police forces across the nation had taken advantage of the resources offered by the federal government and had added a significant military component to their operation.
The implementation of military tactics in urban centers has most often taken the form of paramilitary SWAT
(Special Weapons and Tactics) units. SWAT teams had been (rarely) utilized from the 1960s for high-profile emergencies, such as hostage situations and hijackings, and later to combat terrorism
. From the 1980s many SWAT teams were formed with federal help in localities, to be used primarily and with increasing frequency for serving drug warrants on suspected drug dealers. The SWAT raids, often ruthlessly carried out in minority communities, became very common (40,000 deployments in 2001) and resulted in many unwarranted and unjustified fatalities, trauma and other damage. The transformation from community to military policing began with the passing by the Congress
in 1981 of the Military Cooperation with Law Enforcement Act
; the act authorized police forces of several different types to access a variety of military facilities and resources, for the purported purpose of drug interdiction. Presidents George Bush
and Bill Clinton
enthusiastically continued the drug policies of the Reagan administration. The size of federal disbursements to the police of a given locality was linked to the number Drug War arrests made there.
The Congressional Comprehensive Drug Abuse Prevention and Control Act of 1970
was amended by the Comprehensive Forfeiture Act of 1984 (part of the Comprehensive Crime Control Act of 1984). The new law allowed federal law enforcement agencies to retain and use proceeds from drug operations forfeitures, while state and local police agencies were allowed to keep up to 80% of the total value of confiscated assets. The broadly interpreted federal forfeiture laws gave police departments a pecuniary interest, and therefore another powerful incentive, to aggressively wage the War on Drugs. The rules of the War (or their absence) were increasingly skewed against the suspected or accused, most of whom lacked the resources to legally defend themselves or "buy their freedom". The result was a large-scale confinement of persons whose role in the drug enterprise had been marginal.
Some of the abuse that had taken place when assets were seized by the police became well-publicized and led to the passage of the Civil Asset Forfeiture Reform Act of 2000, in which the Congress addressed some of the most egregious issues, leaving however the system of financial incentives for the police intact. The political and cultural aspects of the War on Drugs were not dealt with, and as a result the system is now well-entrenched and fully institutionalized, with funding provided on all levels, from federal to local. Barack Obama
stated in 2008 that reviving the Byrne grant program was "critical to creating the anti-drug task forces our communities need".
Indigent criminal defendants are most often not provided with meaningful legal representation (to which they are in theory entitled) and their cases very rarely go to trial. Threatened with severe mandatory sentences
, they are, in nearly all instances, pressured into plea bargain
deals, which in practice place them under permanent control of the criminal justice system. In its 2004 report the American Bar Association
stated that countless poor people accused of crimes are in reality denied access to a lawyer. Minors are routinely manipulated to wave their right to counsel.
With the Congressional Anti-Drug Abuse Act of 1986, disproportionately long mandatory minimum prison terms were imposed for low-level dealing and possession of crack cocaine. State assemblies quickly joined the trend with similar harsh legislation, introducing also "three strikes
" laws that mandated a life sentence for a third felony offense of any kind. The draconian mandatory penalties, entirely out of step with the practice abroad in developed countries, eliminated judicial discretion and made the prosecutors, not judges or juries, the most powerful parties in the criminal legal process. The severity of charges filed against the defendant and the plea bargain process, as well as the deals made as its outcome, are at the prosecutor's discretion. The possible disastrous consequences of choosing a trial compel many accused, who lack legal experience or judgement, to plead guilty and opt for a deal offered, regardless of whether they committed the crime or not.
The majority of the Supreme Court justices have consistently upheld the constitutionality and practice of harsh mandatory sentencing, for example in the 1991 Harmelin v. Michigan
case. California
's three strikes law was upheld in the 2003 Lockyer v. Andrade
, where a sentence of fifty years without parole for minor theft was declared valid. According to the Court, the Eight Amendment
prohibition against cruel and unusual punishment
does not apply in such cases. Heavy mandatory penalties have been most often invoked in nonviolent cases, against low-level drug offenders.
The huge rise of the US prison population has been caused by the "tough on crime" laws and policies, not by increasing crime rates. Individuals labeled or branded "felons", whether actually serving jail time, or managed by the criminal justice system in other ways (as happens in the majority of cases), are, because of the myriad legally mandated restrictions and discrimination and the associated stigma, unable to reenter the mainstream society and tend to be rearrested. A violation of a parole condition is a leading case of imprisonment. The members of the marginalized felon population "undercaste" end up cycling in and out of penal confinement, sometimes for the rest of their lives.
, which has rejected challenges to the police procedures employed and legal processes utilized. The high court has also not recognized the validity of statistical evidence of bias and discrimination, requiring instead specific proof of individual prosecutorial misconduct
in each case, an indication of ill intention that is in practice impossible to obtain. In 2001 the court rejected private law suits brought under Title VI of the Civil Rights Act of 1964
, thus eliminating the last avenue for challenging racial profiling
through litigation. The enormous racial disparity among those swept into the mass incarceration system (now legally immunized from claims of racial bias) cannot, according to Alexander, be explained by differential crime rates. The system is structured to generate this particular outcome.
The law enforcement methods developed in the course of the War on Drugs are utilized almost exclusively in low income communities of racial minorities; they would result in publicized outcry if practiced in middle class white areas. The outcomes differ among the regions and states, but in 2000, according to the Human Rights Watch
, blacks were sent to prison on drug charges at the rate of 20 to 57 times that of whites in fifteen states. Nationwide, African-American prison admission for drug offenses rates had increased 26 times between 1983 and 2000, 22 times in case of Latinos, and 8 times for whites. Three-fourths of the imprisoned have been blacks and Latinos, while the majority of illegal drug users and dealers are white. The relevant black imprisonment has declined more recently by some 25% from its peak in the 1990s, but African Americans are still being incarcerated at grossly disproportionate rates. The official explanation for the disparate numbers, the crime rates, is belied by research data: The surveys that have been conducted so far show people of all races using illegal drugs at "remarkably similar rates". Drug markets reflect racial and socioeconomic boundaries, that is most users buy drugs locally from their own. Yet in 2006 for example, 1 out of every 14 black men was incarcerated, compared to 1 in 106 ratio for white men, due largely to the racial bias of the drug war practices.
This raises the issue of how exactly such disparity comes about in a society where old-fashioned racism is not normally practiced and racial discrimination is condemned by most, under a formally colorblind criminal justice system. The usual opinion is that the grossly disproportionate incarceration rates are the result of black men having much higher rates of violent crime; it is however drug convictions, not violent crime, that are primarily responsible for the prison boom. According to Alexander, "despite the colorblind rhetoric and fanfare of recent years, the design of the drug war effectively guarantees that those who are swept into the nation's new undercaste are largely black and brown".
The system operates in two major stages. The first is the granting law enforcement personnel extraordinary discretion as to whom to stop, investigate further, arrest and charge. This allows beliefs, stereotypes, policies and assumptions to unduly influence the decisions of officials. The second step is to disable the ability of court systems to consider claims of racial discrimination in the criminal justice system. It has been accomplished by requiring an unreasonably high standard of proof in discrimination cases: a (unobtainable in almost all cases) proof of some official's intentional racial discrimination (bigotry, racial hostility), rather than allowing a demonstration of the clearly discriminatory outcome of the legal process. This design turned out to be extraordinarily effective for the promoters of the system of racial control and extremely damaging for the segments of the population subjected to it.
By 1985 the War on Drugs had become largely localized, partially because of the persistent government and media promotion campaign (most prominently in television presentations), in poor communities of color, identified with the highly publicized in the media crack cocaine
usage and dealing. Law enforcement officials replaced drug treatment center sources as media "experts" and the imagery of drug, or any other street criminals being dark was firmly established in public perception. Equally affected were officials in public capacity, such as police officers, prosecutors and jurors, who with the rest of the viewers primed by the campaign, developed conscious or (often) unconscious anti-black biases. An effective "public consensus was constructed by political and media elites", directed against the demonized black and brown men and women. This framework made it the obvious choice for the police to concentrate their War on Drugs efforts on black inner cities
. The perceived enemy was also the one most accessible and easy to pursue, because of having the least political clout.
Back in 1938 the US Supreme Court recognized its own responsibility
in protecting "discrete and insular minorities" to whose interests the majoritarian political process may be at times be injurious, and to guarantee constitutional rights of groups deemed unpopular or subject to prejudice. In the 1990s however the high court, according to Alexander, adopted rules that would actually maximize the likely discriminative effects. In Whren v. United States
, the police stop and search procedures, even without a presumption of criminal activity likely to have occurred, were upheld, declared not in violation of the ban on unreasonable searches and seizures of the Fourth Amendment
. The lack of such likelihood requirement allowed unlimited racially discriminatory discretion on the part of the police. The court also barred the accused from claiming racial bias under the Fourth Amendment. Using the Fourteenth Amendment
for this purpose was formally allowed, but the Supreme Court had already effectively eviscerated that avenue for seeking legal redress in an earlier 1987 case
.
In McCleskey v. Kemp
, under the Supreme Court consideration in 1987, the alleged racial bias in Georgia
death penalty
practice was challenged. Racial bias in violation of the Fourteenth and Eight
Amendments was claimed by the defendant, based on the extensive study of Georgia murder cases published by David C. Baldus
and others. Georgia prosecutors were found in the study to be disproportionally more inclined to seek the death penalty when the victim was white and defendant black, rather than the other way around (70% to 19% respectively), which resulted in defendants charged with killing of white victims receiving the death penalty at the rate eleven times that of defendants charged with killing of black victims (4.3 times after adjusting for a number of non-racial variables). Black defendants found guilty of killing white victims were the group most likely to be sentenced to death. By a one vote margin the high court, apparently worried about undermining the entire U.S. criminal justice system practice, immunized it from claims of racial bias, by ruling that statistical arguments alleging discriminatory court decisions (patterns of discrimination) did not prove unequal treatment (and therefore could not be used in legal challenges) and that conscious, discriminatory intent on the part of plaintiff officials must be demonstrated. The requirement of proving deliberate official bias in each individual case, impossible to satisfy within the existing trial procedures, has rendered challenging court racial discrimination under the Fourteenth and Eight Amendments impractical.
There have been judicial attempts to circumvent the legal consequences of McCleskey v. Kemp, including the issue of disparate sentencing laws for crack and powder cocaine violations, but they were unsuccessful or reversed on appeals based on the high court precedent. In 1995 the Georgia Supreme Court, faced with the fact that 98.4% of those serving the life sentence under a "two strikes" drug sentencing provision were black, in a 4-3 decision attempted to force state prosecutors to provide a race-neutral explanation for this outcome (the prosecutors had invoked the life term penalty in 1% of white, but in 16% of black eligible cases). Instead of complying, the Georgia attorney general demanded a rehearing through a petition signed by all 46 of the state's district attorneys, all of whom were white. The prosecuting establishment felt again that the implementation of the ruling would "paralyze the criminal justice system" and the Georgia court was pressured to reverse itself. The new decision was formally based mostly on McCleskey v. Kemp.
In United States v. Armstrong in 1996, the defendant attempted to obtain a discovery
order to show selective enforcement, because out of over two thousands crack cocaine federal prosecutions in California
, none, according to the government three-year record, were against whites (the majority of crack offenders are believed to be white). The discovery that could point to selective prosecution (switching by federal prosecutors of white defendants to the state system, where crack penalties were far less severe, was suspected), granted by the district court in California, was denied by the U.S. Supreme Court, which felt that deference to the exercise of prosecutorial discretion must be kept intact at the expense of non-discriminatory treatment of the accused. The court-protected discretion of prosecution includes the domains of charging, plea bargain
, transfer of cases and sentencing. Studies have shown that in prosecutor-controlled pretrial negotiation
process whites are far more successful than non-whites. Prosecutorial discretion includes the ability to transfer cases from state to the federal system (or the other way around) and transfer juveniles to adult courts. African-American minors, who account for 16% of all youth in the United States, constitute 28% of all juveniles arrested, 35% of those redirected to adult criminal courts and 58% of all minors admitted in state adult prisons. Differential treatment of white and non-white youth by prosecutors, who have fought against and are protected from any judicial checks or scrutiny by the Supreme Court rulings, is one major cause of the disparities. The U.S. Supreme Court, according to Alexander, devised a system, which appears to be colorblind, but in which "racial biases and stereotypes are given free rein".
Black defendants who go through criminal trials may end up before a jury
; the selection of jurors and racial composition of juries have always been of great importance to the accused. In 1880 in Strauder v. West Virginia
, the US Supreme Court, based on the then recent Fourteenth Amendment, adamantly rejected the automatic exclusion of blacks from jury duty based on race. In reality however, convicting of African Americans by all-white exclusionary juries had remained regular practice throughout the South and the outcomes of such trials were upheld by the high court on a number of occasions, with the exception of a couple of cases in the 1930s (Scottsboro Boys
, Hale v. Kentucky
). In the 1965 Swain v. Alabama
decision, the Supreme Court provided a numerically insignificant protection against all-white juries, allowing (racially motivated) peremptory challenge
s, on the condition that a given prosecutor had not always excluded blacks. This result was overruled in 1986 in Batson v. Kentucky
, when, based on the Fourteenth Amendment, the selection of jurors based on race was explicitly prohibited. The ruling, believed at that time to be of fundamental importance for the rights of the defendants of color, has subsequently been practically compromised by prosecutorial practice and further court decisions that accepted the circumventing strategies. The pool of available black jurors had already been severely limited, because of the government lists from which jurors are selected (typically registered voters or vehicle owners) and the widely applied (by the federal government and most states) exclusion of felons, often for life. To remove most of the remaining African Americans, the prosecutors now had to come up with race-neutral explanations. In 1995, in Purkett v. Elem, the court accepted the plausibility of using trivial or arbitrary excuses for exclusion of jurors, as long as they were not racially based, letting the trial judge rule on the validity of the reasons given for the challenges. Since that time federal courts have tolerated many cases of practical, if informal exclusion of blacks from juries. Miller-El v. Cockrell of 2003 was an exception, because a jury selection manual with racial criteria was found to have been used, which violated the prevalent contemporary standard of condoning discrimination, on the condition that the policy is not explicitly stated.
While the prosecutorial class has the most practical power in the criminal justice system, the police enjoys the greatest discretion in deciding where the War on Drugs is waged and which specific enemy is being targeted and pursued. Large scale militarized police operations in more affluent neighborhoods (shown by research to be equally affected by illegal drug use) are in the US unthinkable, for a number of structural and political reasons (such activities would be career-suicidal for the police in the first place). The obvious and intended choice for aggressive police action is the ghetto of underprivileged black and brown people, invariably present in every urban area. The overbearing police presence in such places is referred to by local youth as "The Occupation".
A team of researchers at the University of Washington
(Katherine Beckett and others) published in 2005 and 2006 the results of their empirical studies of illicit drug market practices and police response in Seattle. They found that police priority enforcement in minority neighborhoods and actions preferentially directed against members of the black and Latino ethnicities could not be justified or explained by the phenomena conventionally claimed to be responsible by defenders of the government drug policies, such as high rates of drug offending, accessibility of "open-air drug markets", crime rates, violence, citizen complaints etc. Police stereotypes and the assumption that drug dealing and usage crimes typically occurred within the minority communities, combined with the perception that crack, associated with urban blacks, was the single most important culprit, resulted in a situation where whites were "not perceived as drug offenders by Seattle police officers". The department members therefore directed their enforcement efforts in accordance with this politicized, "racialized conception of the drug problem".
Altering the ways of the police and defense of other rights of an unpopular minority (perceived "black criminals" in this case) could properly be accomplished through the court system, utilizing the Fourteenth Amendment's equal protection guarantee. This however is no longer feasible, because of the unreasonably high barriers and procedural requirements that have been imposed by the courts, including the standing requirement
. The "standing" are very narrowly defined, in racial cases usually impossible to fulfill criteria that the party bringing a discrimination suit must fulfill in order to show that he or she properly belongs to the category claimed for redress. In City of Los Angeles v. Lyons
the plaintiff sought to force the Los Angeles
police to discontinue a violent procedure that he was subjected to (and others had been killed by), but in 1983 the Supreme Court declined and established the normally impossible to meet standing requirements that have since prevented or discouraged further legal challenges to (even obviously illegal and discriminatory) police practices. In a series of rulings the Supreme Court has also declared state institutions immune to monetary damage suits and greatly restricted the applicability of such lawsuits (proved intentional discrimination required) in case of local government units.
In the 1975 United States v. Brignoni-Ponce
case, the Supreme Court allowed the police to take into account racial appearance (Mexican in this instant) of motorists when making discretionary traffic stop and search decisions. This has led to informal policies of police departments, which consider racial profiling
to have taken place only when race can be shown to be the only criterion involved. In practice however race is rarely the sole reason, but often the determinative reason. The racial disparities of the War on Drugs are exacerbated by the police practice of selective targeting of "high crime" minority ghettos; black youth accumulate much higher criminal records than their white counterparts, who do not live in neighborhoods heavily targeted by the police.
Numerous studies have shown a dramatic pattern of racial bias also in situations where the racial minorities do not numerically predominate, prominently in highway patrol stops and searches. African-American and Latino divers stopped and searched in disproportionate numbers consequently constitute a large majority of those arrested and charged with drug crimes. There is no positive correlation between the frequency of occurrence of drug violations among racial groups and criminal drug charges filed by the police; the relationship depends on the make-up of motorists subjected to discretionary stops.
Pedestrian stop and frisk tactics, widely practiced by the police in New York City
and other municipalities, target blacks and Latinos at the rates much greater than white pedestrians and likewise contribute to the racially disparate proportions among those charged with drug crimes.
Possibly the fatal blow to racial bias anti-discrimination litigation was delivered in 2001 by the US Supreme Court in Alexander v. Sandoval
. The merits of the case had never been considered, because the court decided that Title VI of the Civil Rights Act of 1964
, on which the plaintiffs' reasoning was based, does not provide a "private right of action" (such as suits by civil rights organizations) and its antidiscrimination provisions can be used in suits by the federal government only. Title VI and its pursuant regulations prohibit federally funded activities from race discrimination, based on their discriminatory impact that cannot be justified by law enforcement necessity, not on the necessity of proving intention to discriminate. Law enforcement agencies involved in the drug war receive federal funding, so Title VI had been seen and used as the avenue through which local enforcement tactics, such as pretext stops and consent searches, could be curtailed. Title VI, limited to the federal government enforcement initiative, is of little use, given the central government's limitations and its institutional reluctance to confront state and local authorities (and the fact that the War on Drugs has been waged and maintained by the federal government itself).
This and other similar legal outcomes have in practice thoroughly immunized the system of mass incarceration from claims of racial bias that can be filed in courts, at every stage of the criminal justice process. According to Alexander, the rulings of the Supreme Court in their totality "guarantee that those who find themselves locked up and permanently locked out due to the drug war are overwhelmingly black and brown".
Racism in the United States
Racism in the United States has been a major issue since the colonial era and the slave era. Legally sanctioned racism imposed a heavy burden on Native Americans, African Americans, Asian Americans, and Latin Americans...
social and political phenomena in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
by Michelle Alexander
Michelle Alexander
Michelle Alexander is an associate professor of law at Ohio State University and a civil rights advocate, who has litigated numerous class action discrimination cases and has worked on criminal justice reform issues...
, a civil rights litigator and legal scholar. Alexander deals in the book primarily with the issue of the current mass levels of incarceration (the United States, with 5% of the world's population, has 25% of the world's prisoners) and other means of societal suppression of African-American
African American
African Americans are citizens or residents of the United States who have at least partial ancestry from any of the native populations of Sub-Saharan Africa and are the direct descendants of enslaved Africans within the boundaries of the present United States...
men (Latino
Hispanic and Latino Americans
Hispanic or Latino Americans are Americans with origins in the Hispanic countries of Latin America or in Spain, and in general all persons in the United States who self-identify as Hispanic or Latino.1990 Census of Population and Housing: A self-designated classification for people whose origins...
men to a lesser degree), and the social consequences of the policies described, for the "people of color" and for the country as a whole.
According to Alexander, the majority of young black men in large American cities are "warehoused in prisons" (their labor no longer needed in the globalized economy
Globalization
Globalization refers to the increasingly global relationships of culture, people and economic activity. Most often, it refers to economics: the global distribution of the production of goods and services, through reduction of barriers to international trade such as tariffs, export fees, and import...
) or, after having criminal records and labeled as "felons", permanently trapped in a second-class status
Second-class citizen
Second-class citizen is an informal term used to describe a person who is systematically discriminated against within a state or other political jurisdiction, despite their nominal status as a citizen or legal resident there...
. The communities of color are targeted and decimated by the U.S criminal justice
Criminal justice
Criminal Justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, or sanctioning those who violate laws with criminal penalties and rehabilitation efforts...
system, with the War on Drugs
War on Drugs
The War on Drugs is a campaign of prohibition and foreign military aid and military intervention being undertaken by the United States government, with the assistance of participating countries, intended to both define and reduce the illegal drug trade...
being the primary tool chosen by the establishment intent on continuation of many of the traditional and new forms of discrimination, discrimination, which according to the conventional point of view, had mostly ended with the Civil rights movement
Civil rights movement
The civil rights movement was a worldwide political movement for equality before the law occurring between approximately 1950 and 1980. In many situations it took the form of campaigns of civil resistance aimed at achieving change by nonviolent forms of resistance. In some situations it was...
reforms of the 1960s
Civil Rights Act of 1964
The Civil Rights Act of 1964 was a landmark piece of legislation in the United States that outlawed major forms of discrimination against African Americans and women, including racial segregation...
.
In an article addressing the status of contemporary African Americans, Alexander said, "The clock has been turned back on racial progress in America, though scarcely anyone seems to notice. All eyes are fixed on people like Barack Obama and Oprah Winfrey who have defied the odds and achieved great power, wealth and fame". Alexander sees the masses of ordinary African Americans as being relegated to the status of a "racial caste", even though the official approach to dealing with the minorities
Minority group
A minority is a sociological group within a demographic. The demographic could be based on many factors from ethnicity, gender, wealth, power, etc. The term extends to numerous situations, and civilizations within history, despite the misnomer of minorities associated with a numerical statistic...
has been redesigned, to avoid explicit use of racial attributes. According to Alexander, the forms of "racial control" evolve as required by changing political circumstances and contemporary standards, with the current "criminal justice" activities replacing the Jim Crow laws
Jim Crow laws
The Jim Crow laws were state and local laws in the United States enacted between 1876 and 1965. They mandated de jure racial segregation in all public facilities, with a supposedly "separate but equal" status for black Americans...
, which in turn had replaced slavery. Michelle Alexander aims to mobilize the civil rights community to move the incarceration issue to the forefront of its agenda and to provide factual information, data, arguments and reference for those interested in pursuing the issue. Her broader goal is the revamping of the prevailing mentality regarding human rights
Human rights in the United States
Human rights in the United States are legally protected by the Constitution of the United States and amendments, conferred by treaty, and enacted legislatively through Congress, state legislatures, and plebiscites...
, equality
Egalitarianism
Egalitarianism is a trend of thought that favors equality of some sort among moral agents, whether persons or animals. Emphasis is placed upon the fact that equality contains the idea of equity of quality...
and equal opportunities in America, to prevent future cyclical recurrence of racial control under changing disguise.
Overview
According to the author, what has been altered since the collapse of Jim Crow is not so much the basic structure of the society, as the language used to justify its affairs. People of color are classified as "criminals"Criminal black man stereotype
The criminal black man is an ethnic stereotype in the United States associated with characterizing some African-American men as criminal and dangerous. The figure of the black man as criminal has appeared frequently in popular culture and media...
, which allows the unleashing of a whole range of legal discrimination
Discrimination
Discrimination is the prejudicial treatment of an individual based on their membership in a certain group or category. It involves the actual behaviors towards groups such as excluding or restricting members of one group from opportunities that are available to another group. The term began to be...
measures (in employment, housing, education, public benefits, voting rights, jury duty etc.).
Michelle Alexander explains how it took her years to become fully aware and convinced of the phenomena she describes, despite her professional civil rights background; she expects similar reluctance and disbelief on the part of many of her readers. She found the problems besetting African American communities to be not merely a passive and collateral function of factors such as poverty or lack of educational opportunity, but a consequence of actively and purposely pursued government policies, for example the three strikes law
Three strikes law
Three strikes laws)"are statutes enacted by state governments in the United States which require the state courts to hand down a mandatory and extended period of incarceration to persons who have been convicted of a serious criminal offense on three or more separate occasions. These statutes became...
s. Alexander came to recognize the mass incarceration policies, which were swiftly developed and implemented, as a "comprehensive and well-disguised system of racialized control that functions in a manner strikingly similar to Jim Crow".
The "War on Drugs
War on Drugs
The War on Drugs is a campaign of prohibition and foreign military aid and military intervention being undertaken by the United States government, with the assistance of participating countries, intended to both define and reduce the illegal drug trade...
", presented later by the media as the authorities' response to the crack cocaine
Crack cocaine
Crack cocaine is the freebase form of cocaine that can be smoked. It may also be termed rock, hard, iron, cavvy, base, or just crack; it is the most addictive form of cocaine. Crack rocks offer a short but intense high to smokers...
crisis in black ghettos, was officially announced by the government of Ronald Reagan
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
in 1982. Crack cocaine emerged in inner city neighborhoods beginning in 1985/1986 and the problem was highly publicized by the Reagan administration in order to generate support for the drug war. The extraordinarily successful media campaign made the enormous expansion of the law enforcement anti-crack activities possible. The intensity of the government assault caused many in the black community to believe in conspiracy theories
Conspiracy theory
A conspiracy theory explains an event as being the result of an alleged plot by a covert group or organization or, more broadly, the idea that important political, social or economic events are the products of secret plots that are largely unknown to the general public.-Usage:The term "conspiracy...
and speculate about genocidal government plans to destroy the black people in the USA. In 1998 the CIA
Central Intelligence Agency
The Central Intelligence Agency is a civilian intelligence agency of the United States government. It is an executive agency and reports directly to the Director of National Intelligence, responsible for providing national security intelligence assessment to senior United States policymakers...
admitted that the faction supported by the US
Contras
The contras is a label given to the various rebel groups opposing Nicaragua's FSLN Sandinista Junta of National Reconstruction government following the July 1979 overthrow of Anastasio Somoza Debayle's dictatorship...
in its covert war in Nicaragua was involved in smuggling illegal drugs into the USA. Efforts to uncover those activities were blocked.
The War on Drugs
Race and the War on Drugs
Several authors have claimed that there are racial disparities in arrests, prosecutions, imprisonment, rehabilitation programs, and other aspects of the War on Drugs.-Arrests / Imprisonment:...
has had a devastating impact on the African American communities, on a scale entirely out of proportion with the actual dimensions of criminal activity taking place within these communities. In less than three decades the US prison population exploded from 300,000 to more than two million (majority of the conviction increase for drug violations), resulting in the world's highest incarceration rate, exceeding the rates of a number of regimes strongly criticized by the US government as highly repressive. It is eight times the incarceration rate in Germany
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
, a comparatively developed large democracy
Democracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
. The USA is unparalleled in the world in concentrating its penal activities on its racial/ethnic minorities. In the capital city of Washington, D.C.
Washington, D.C.
Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....
three out of four young African American males are expected to serve time in prison. While studies show Americans of different races using illegal drugs quantitatively on a similar scale, in some states black men have been admitted to prisons on drug charges at the rate twenty to fifty times that of white men. The high proportion of African American men with criminal record of some sort (as many as 80% in major cities) are marginalized and a part of the growing permanent undercaste.
While historically crime and punishment intensities have often been poorly correlated, the scale and lack of balance of the present USA criminal justice activity and penal system have turned it, according to Alexander, into a system of social control unparalleled in world history. Its targets can be defined largely by race. The rate of incarceration in the US has soared, while its crime rates have generally not been higher than those in other western countries, where the incarceration rates accordingly have remained stable. The current rate of incarceration in the USA, six to ten times greater than in other industrialized nations, is therefore not related to the actual rates of crime or their increase, but can be traced to a great extent to the artificially invoked War on Drugs discriminatory policies. In 1973 the National Advisory Commission on Criminal Justice Standards and Goals of the Justice Department
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
stated that there is overwhelming evidence that prisons and jails create crime rather than prevent it, and recommended no further construction of adult facilities, combined with elimination of the existing juvenile centers. Actual developments went in the exactly opposite direction, as the USA embarked on an unprecedented in human history expansion of its prison system.
The civil rights community has been reluctant to get involved in this issue, concentrating first of all on protecting the threatened affirmative action
Affirmative action
Affirmative action refers to policies that take factors including "race, color, religion, gender, sexual orientation or national origin" into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination.-Origins:The term...
gains, that is the access of their best and brightest to the nation's top universities. At the other end of the African American social spectrum is the one third of all black young men, who are under active control of the criminal justice system, currently in jail, on probation or on parole. Criminal justice was not on the list of top priorities of the Leadership Conference on Civil Rights in 2007 and 2008 or of the Congressional Black Caucus
Congressional Black Caucus
The Congressional Black Caucus is an organization representing the black members of the United States Congress. Membership is exclusive to blacks, and its chair in the 112th Congress is Representative Emanuel Cleaver of Missouri.-Aims:...
in 2009. NAACP
National Association for the Advancement of Colored People
The National Association for the Advancement of Colored People, usually abbreviated as NAACP, is an African-American civil rights organization in the United States, formed in 1909. Its mission is "to ensure the political, educational, social, and economic equality of rights of all persons and to...
and ACLU
American Civil Liberties Union
The American Civil Liberties Union is a U.S. non-profit organization whose stated mission is "to defend and preserve the individual rights and liberties guaranteed to every person in this country by the Constitution and laws of the United States." It works through litigation, legislation, and...
have been involved in legal action and grassroots campaigns have been organized, but Alexander feels that generally there is a lack of appreciation of the enormity of the crisis. According to her, mass incarceration is "the most damaging manifestation of the backlash against the Civil Rights Movement", and those who feel that the election of Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
represents the ultimate "triumph over race" ("the widespread belief that race no longer matters") are dangerously misguided.
The persistent racial inequality, which has created more than an underclass, a rigid caste system, is hidden from view, invisible within a maze of rationalizations. Mass incarceration (author's emphasis) is its most salient manifestation. The racial caste term Alexander employs to denote a "stigmatized racial group locked into inferior position by law and custom", as it is commonly used in scientific literature. By "mass incarceration" she means the criminal justice system together with the larger web of laws, rules, policies and customs, racial stigmatization and permanent marginalization, to which it serves as a gateway. The members of the new undercaste, once released from prison, face a "hidden underworld of legalized discrimination and permanent social exclusion".
We (Americans) are, says Alexander, ashamed of our racial history, and therefore avoid talking about race, or even class, and the terms used here to many will seem strangely unfamiliar. Americans want to believe that everybody is in principle and practically capable of upward mobility, given enough effort on his or her part; this assumption forms a part of the national collective self-image. African Americans are prevented from joining this mobility process by law and the resulting institutional discrimination. The ostensibly colorblind system produces the undercaste, defined largely by race and forming a huge percentage of African Americans.
The existence of this system is not disproved by the election of Barack Obama and other African American exceptional achievement, but to the contrary, it depends on such factors. It does not require overt racial hostility or bigotry
Bigotry
A bigot is a person obstinately or intolerantly devoted to his or her own opinions and prejudices, especially one exhibiting intolerance, and animosity toward those of differing beliefs...
, indifference serves its purpose. The New Jim Crow system relies on the underlying racial ideology, will not be significantly disturbed by half-measures such as laws mandating shorter sentences, and like its predecessors has been largely immunized from legal challenge. "A human rights nightmare is occurring on our watch" and it cannot be dealt with effectively without the phenomenon being recognized by a broad social consensus; at the moment such awareness is lacking. To many the problem may seem too daunting and intractable. The New Jim Crow book is intended to stimulate a much-needed national conversation "about the role of the criminal justice system in creating and perpetuating racial hierarchy in the United States".
Summary of chapters
The New Jim Crow is divided into the Introduction, which provides an overview of the book's themes, and six chapters.Chapter 1: The Rebirth of Caste
Chapter 1: The Rebirth of Caste reviews the history of racial social control in the United States. It describes the changing forms and reemerging patterns of racial caste systems, and explains how the proponents of racial hierarchy have been able to ensure its reemergence after successful collapses, to a large extent by appealing to the prejudices and insecurities of lower-class whites.To secure their long-term interests and establish a social alliance, slave-owning
Slavery
Slavery is a system under which people are treated as property to be bought and sold, and are forced to work. Slaves can be held against their will from the time of their capture, purchase or birth, and deprived of the right to leave, to refuse to work, or to demand compensation...
planters introduced arrangements that improved, to a limited degree, the situation of poor whites. Poor whites were offered some practical privileges, labor deals and assurances of their superior, in relation to black slaves, position; such inter-white social contract was later referred to as a "racial bribe".
The original United States Constitution
History of the United States Constitution
The United States Constitution was written in 1787, but it did not take effect until after it was ratified in 1789, when it replaced the Articles of Confederation. It remains the basic law of the United States...
, while using colorblind language, sanctioned the slavery, which was the condition of the southern states
Old South
Geographically, Old South is a subregion of the American South, differentiated from the "Deep South" as being the Southern States represented in the original thirteen American colonies, as well as a way of describing the former lifestyle in the Southern United States. Culturally, the term can be...
for joining the Union. Those who were not free persons were defined as three-fifths of a person for the purpose of numerical apportioning of congressional
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
representation.
Slavery ended with the American Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
, which was followed first by the defeated southern states attempting to reassert their racial controls through a variety of legal measures. Then however the constructive and fundamental amendments
Reconstruction Amendments
The Reconstruction Amendments are the Thirteenth, Fourteenth, and Fifteenth amendments to the United States Constitution, adopted between 1865 and 1870, the five years immediately following the Civil War...
to the Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
and federal
Federal government of the United States
The federal government of the United States is the national government of the constitutional republic of fifty states that is the United States of America. The federal government comprises three distinct branches of government: a legislative, an executive and a judiciary. These branches and...
civil rights legislation
Civil Rights Act of 1866
The Civil Rights Act of 1866, , enacted April 9, 1866, is a federal law in the United States that was mainly intended to protect the civil rights of African-Americans, in the wake of the American Civil War...
of the Reconstruction Era were passed. As a result, while the protected by the federal authority and troops African Americans were making unprecedented political gains (in 1870 at least 15% of all southern elected officials were black), the southern states began formulating and implementing their new comprehensive policies aimed at maintaining the racial order through the separation of races
Racial segregation
Racial segregation is the separation of humans into racial groups in daily life. It may apply to activities such as eating in a restaurant, drinking from a water fountain, using a public toilet, attending school, going to the movies, or in the rental or purchase of a home...
. The Reconstruction's absence of land reform
Land reform
[Image:Jakarta farmers protest23.jpg|300px|thumb|right|Farmers protesting for Land Reform in Indonesia]Land reform involves the changing of laws, regulations or customs regarding land ownership. Land reform may consist of a government-initiated or government-backed property redistribution,...
had prevented the southern blacks from achieving meaningful economic and lasting social progress.
The Reconstruction was followed by a white backlash and the so-called Southern Redemption, a movement that resulted in the withdrawal of federal troops from the South and the federal government ceasing its enforcement activity there (1877). The former slavery states were free to impose a number of punitive legal measures. They put into common use practices such as convict leasing
Convict lease
Convict leasing was a system of penal labor practiced in the Southern United States, beginning with the emancipation of slaves at the end of the American Civil War in 1865, peaking around 1880, and ending in the last state, Alabama, in 1928....
, tailoring the criminal justice
Criminal justice
Criminal Justice is the system of practices and institutions of governments directed at upholding social control, deterring and mitigating crime, or sanctioning those who violate laws with criminal penalties and rehabilitation efforts...
system for the purpose of repressing the African American population.
In the 1880s and 1890s many southern blacks came under the influence of the conservative and radical philosophies, each offering a different path and scope for the realization of black social gains. The radical Populist Party was able to put together a formidable and unprecedented alliance of blacks and poor whites, before it succumbed to mounting political pressures and abandoned its interracial coalition efforts. The Populist attempts and successes were countered by campaigns of terror and white supremacy and by the actions of southern establishments, which adopted racially restrictive laws across many states. The new laws imposed segregation and black disenfranchisement in countless areas of economical, governmental, educational, public and social activity. This new, mature system of oppressive control and racial order, known as the Jim Crow
Jim Crow laws
The Jim Crow laws were state and local laws in the United States enacted between 1876 and 1965. They mandated de jure racial segregation in all public facilities, with a supposedly "separate but equal" status for black Americans...
, was fully implemented by the turn of the twentieth century. It secured the support of lower-class whites by offering them a "racial bribe" of the largely psychological, privileged (segregated from black people) status of racial supremacy and by eliminating African Americans as a viable political ally.
The Jim Crow system functioned undisturbed throughout the South for several decades. Gradual change arrived in the aftermath of World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
, with the first Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
decisions outlawing racial segregation and exclusion in some instances. The celebrated landmark case of Brown v. Board of Education
Brown v. Board of Education
Brown v. Board of Education of Topeka, 347 U.S. 483 , was a landmark decision of the United States Supreme Court that declared state laws establishing separate public schools for black and white students unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 which...
was decided in 1954. The forced desegregation of southern schools was met with discriminatory state legislative actions and violent opposition among the white southern populace. The faltering desegregation process was however saved, as a mass grassroots
Grassroots
A grassroots movement is one driven by the politics of a community. The term implies that the creation of the movement and the group supporting it are natural and spontaneous, highlighting the differences between this and a movement that is orchestrated by traditional power structures...
Civil Rights Movement led by Martin Luther King, Jr.
Martin Luther King, Jr.
Martin Luther King, Jr. was an American clergyman, activist, and prominent leader in the African-American Civil Rights Movement. He is best known for being an iconic figure in the advancement of civil rights in the United States and around the world, using nonviolent methods following the...
came into prominence and was able to reassert itself in the yearly 1960s. The determined civil rights struggle led to President John F. Kennedy
John F. Kennedy
John Fitzgerald "Jack" Kennedy , often referred to by his initials JFK, was the 35th President of the United States, serving from 1961 until his assassination in 1963....
's announcement in 1963 of a major new civil rights legislation being prepared. After Kennedy's death the political leadership of the civil rights federal activity was assumed by President Lyndon B. Johnson
Lyndon B. Johnson
Lyndon Baines Johnson , often referred to as LBJ, was the 36th President of the United States after his service as the 37th Vice President of the United States...
, whose support and determination were essential in engineering and helping to push through the Congress the two most important legislative acts, the Civil Rights Act of 1964
Civil Rights Act of 1964
The Civil Rights Act of 1964 was a landmark piece of legislation in the United States that outlawed major forms of discrimination against African Americans and women, including racial segregation...
and the Voting Rights Act of 1965. The Jim Crow was officially, and as it turned out also in practice, dismantled.
At that time Dr. King and others in the civil rights community were becoming increasingly conscious of and preoccupied with the economic aspect of the civil rights struggle. Widespread poverty was now the minority
African American
African Americans are citizens or residents of the United States who have at least partial ancestry from any of the native populations of Sub-Saharan Africa and are the direct descendants of enslaved Africans within the boundaries of the present United States...
's greatest hardship and an obvious impediment to the attainment of equality and further social gains. The activists advocated switching emphasis in part from the political and personal rights to the war on poverty
War on Poverty
The War on Poverty is the unofficial name for legislation first introduced by United States President Lyndon B. Johnson during his State of the Union address on January 8, 1964. This legislation was proposed by Johnson in response to a national poverty rate of around nineteen percent...
and economic empowerment, the subjects also embraced by presidents Kennedy and Johnson. The multiracial class issue of wealth redistribution and the building of interracial coalitions were seen by King as the next frontier in the "human rights movement".
The white right wing
Right-wing politics
In politics, Right, right-wing and rightist generally refer to support for a hierarchical society justified on the basis of an appeal to natural law or tradition. To varying degrees, the Right rejects the egalitarian objectives of left-wing politics, claiming that the imposition of equality is...
, in process of regrouping and searching for its response to the collapse of the established racial control system in America, had a different version of future in mind. Adapting to the new reality they looked for ways of rebuilding the conservative social order ("putting the vast majority of blacks back in their place"), while conforming to the formally race-neutral language and learning to live within the new limits of acceptable political discourse.
From the 1950s, the rhetoric of "law and order" gradually replaced the rhetoric of segregation among the right wing activists, especially politicians, who demanded tough punitive legislation and police action. During the civil rights era, the campaign of disobedience and the acts of social violence, such as the riots of 1964, were presented as newly-prevalent lawlessness that had to be dealt with harshly, but was treated with excessive lenience by liberals, including federal courts. The increasing at that time crime rate and white fears were exploited by one of the founders of the modern US conservative movement, Barry Goldwater
Barry Goldwater
Barry Morris Goldwater was a five-term United States Senator from Arizona and the Republican Party's nominee for President in the 1964 election. An articulate and charismatic figure during the first half of the 1960s, he was known as "Mr...
, during his unsuccessful 1964 presidential campaign
United States presidential election, 1964
The United States presidential election of 1964 was held on November 3, 1964. Incumbent President Lyndon B. Johnson had come to office less than a year earlier following the assassination of his predecessor, John F. Kennedy. Johnson, who had successfully associated himself with Kennedy's...
. Politicians who opposed the civil rights acts, after their passage focused on "tough on crime" legislation, the calls for which became sanitized in terms of explicitly racial appeals. The law and order and tough on crime rhetoric proved appealing to working class whites, who were most directly affected by the government's desegregation measures and the resulting, often difficult, situation in urban centers and neighborhoods. The "anti-crime" campaign was to become the most successful and durable political tool and manipulation of the resurgent white right wing, and, together with the spontaneous white opposition to the social transformations that were taking place, led to a momentous and lasting to this day realignment of political forces in the United States.
Following the Great Depression
Great Depression
The Great Depression was a severe worldwide economic depression in the decade preceding World War II. The timing of the Great Depression varied across nations, but in most countries it started in about 1929 and lasted until the late 1930s or early 1940s...
and Franklin D. Roosevelt
Franklin D. Roosevelt
Franklin Delano Roosevelt , also known by his initials, FDR, was the 32nd President of the United States and a central figure in world events during the mid-20th century, leading the United States during a time of worldwide economic crisis and world war...
's New Deal
New Deal
The New Deal was a series of economic programs implemented in the United States between 1933 and 1936. They were passed by the U.S. Congress during the first term of President Franklin D. Roosevelt. The programs were Roosevelt's responses to the Great Depression, and focused on what historians call...
, the Democratic Party
Democratic Party (United States)
The Democratic Party is one of two major contemporary political parties in the United States, along with the Republican Party. The party's socially liberal and progressive platform is largely considered center-left in the U.S. political spectrum. The party has the lengthiest record of continuous...
became not only the representative force of the working-class whites of the North and southern whites (who had been Democrats since the Civil War because of the Democratic Party's support for the racial policies in the South), but was also popular among the blacks, who benefited from the New Deal government policies. This broad coalition remained in force until the implementation of the Republican southern strategy
Southern strategy
In American politics, the Southern strategy refers to the Republican Party strategy of winning elections in Southern states by exploiting anti-African American racism and fears of lawlessness among Southern white voters and appealing to fears of growing federal power in social and economic matters...
, which followed the civil rights reforms and pursued a "new majority", consisting of Republican traditional support (northern upper and middle class), augmented by the now disaffected southern whites and many of the northern, traditionally Democratic whites, such as the blue-collar ethnic Catholics. Beginning with the 1968 presidential campaign
United States presidential election, 1968
The United States presidential election of 1968 was the 46th quadrennial United States presidential election. Coming four years after Democrat Lyndon B. Johnson won in a historic landslide, it saw Johnson forced out of the race and Republican Richard Nixon elected...
, the southern strategy was pursued by Richard Nixon
Richard Nixon
Richard Milhous Nixon was the 37th President of the United States, serving from 1969 to 1974. The only president to resign the office, Nixon had previously served as a US representative and senator from California and as the 36th Vice President of the United States from 1953 to 1961 under...
, who became adept in using "coded antiblack rhetoric" to advance his political career and his party's expansion. The success of the southern strategy depended on continuous maintenance of a racially polarized environment.
Working class whites were forced to compete on more equal bases with African Americans, suffered from the deterioration of urban neighborhoods and were susceptible to the conservative critique of the Democratic leadership as a liberal elite, out of touch with their rank-and-file. As a lasting alliance of lower class whites with the corporate and conservative establishments was being forged, the law and order presidential candidates Richard Nixon and George Wallace
George Wallace
George Corley Wallace, Jr. was the 45th Governor of Alabama, serving four terms: 1963–1967, 1971–1979 and 1983–1987. "The most influential loser" in 20th-century U.S. politics, according to biographers Dan T. Carter and Stephan Lesher, he ran for U.S...
in 1968 acquired 57% of the total vote. The majority of white voters in future national elections would vote Republican. The decade that followed saw a number of issues, such as civil rights enforcement, affirmative action
Affirmative action
Affirmative action refers to policies that take factors including "race, color, religion, gender, sexual orientation or national origin" into consideration in order to benefit an underrepresented group, usually as a means to counter the effects of a history of discrimination.-Origins:The term...
, busing and welfare (conservatives indirectly suggested that the blacks were refusing to work, because they preferred to live off government hand-outs) developing into intense controversies. Nixon declared illicit drugs a "public enemy number one" and declared a "war on drugs
War on Drugs
The War on Drugs is a campaign of prohibition and foreign military aid and military intervention being undertaken by the United States government, with the assistance of participating countries, intended to both define and reduce the illegal drug trade...
", although no specific drug enforcement policy was yet envisioned and no right wing race and social policy consensus had yet emerged.
The conservative revolution with the political focus in the Republican Party reached its mature stage when Ronald Reagan
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
was elected president in 1980
United States presidential election, 1980
The United States presidential election of 1980 featured a contest between incumbent Democrat Jimmy Carter and his Republican opponent, Ronald Reagan, as well as Republican Congressman John B. Anderson, who ran as an independent...
. Reagan issued many implicit, but formally race-neutral appeals concerning crime, welfare, taxes and state rights and his candidacy was enthusiastically embraced by frustrated and disaffected whites; 22% of all Democrats ended up voting for him. Once elected, Reagan proceeded to fulfill his promise of enhancing the federal government's role in combating crime, which at first seemed to be no easy task, since street crime had traditionally been the area of jurisdiction and responsibility of state and local authorities. But the determination was there and the expansion of federal authority posed no difficulty for conservative politicians in this case.
The Justice Department
United States Department of Justice
The United States Department of Justice , is the United States federal executive department responsible for the enforcement of the law and administration of justice, equivalent to the justice or interior ministries of other countries.The Department is led by the Attorney General, who is nominated...
first announced the cutting in half of the personnel assigned to the prosecution of white-collar crime
White-collar crime
Within the field of criminology, white-collar crime has been defined by Edwin Sutherland as "a crime committed by a person of respectability and high social status in the course of his occupation" . Sutherland was a proponent of Symbolic Interactionism, and believed that criminal behavior was...
s and switching its emphasis to street crime, especially the enforcement of illegal drug policies. In October 1982, President Reagan officially declared his administration's War on Drugs
War on Drugs
The War on Drugs is a campaign of prohibition and foreign military aid and military intervention being undertaken by the United States government, with the assistance of participating countries, intended to both define and reduce the illegal drug trade...
, a political move intended to facilitate the implementation of the white right wing's informal race policies that were then assuming a definitive shape, rather than to address the (quite limited at that time) public concern about drugs.
During the 1980s the budgets of the federal departments and agencies charged with drug enforcement (e.g. the Department of Defense
United States Department of Defense
The United States Department of Defense is the U.S...
antidrug allocations, Drug Enforcement Administration
Drug Enforcement Administration
The Drug Enforcement Administration is a federal law enforcement agency under the United States Department of Justice, tasked with combating drug smuggling and use within the United States...
, FBI) were radically increased, while the drug treatment and prevention programs (National Institute on Drug Abuse
National Institute on Drug Abuse
The National Institute on Drug Abuse is a United States federal-government research institute whose mission is to "lead the Nation in bringing the power of science to bear on drug abuse and addiction."-History:...
, Department of Education
United States Department of Education
The United States Department of Education, also referred to as ED or the ED for Education Department, is a Cabinet-level department of the United States government...
antidrug funds) suffered corresponding deep cuts. To ensure the congressional and public support for the new policies, expansion and expenditures, the Reagan administration launched a massive media campaign to promote its War on Drugs, and in particular to sensationalize the emergence of crack cocaine
Crack cocaine
Crack cocaine is the freebase form of cocaine that can be smoked. It may also be termed rock, hard, iron, cavvy, base, or just crack; it is the most addictive form of cocaine. Crack rocks offer a short but intense high to smokers...
in inner city
Inner city
The inner city is the central area of a major city or metropolis. In the United States, Canada, United Kingdom and Ireland, the term is often applied to the lower-income residential districts in the city centre and nearby areas...
neighborhoods.
The heavy-handed federally-led enforcement activity came at the time of economic collapse and acute distress being experienced by the American ghetto
Ghetto
A ghetto is a section of a city predominantly occupied by a group who live there, especially because of social, economic, or legal issues.The term was originally used in Venice to describe the area where Jews were compelled to live. The term now refers to an overcrowded urban area often associated...
communities. Due to globalization
Globalization
Globalization refers to the increasingly global relationships of culture, people and economic activity. Most often, it refers to economics: the global distribution of the production of goods and services, through reduction of barriers to international trade such as tariffs, export fees, and import...
trends, the 1970s was the period of rapid disappearance of urban, local blue collar
Blue-collar worker
A blue-collar worker is a member of the working class who performs manual labor. Blue-collar work may involve skilled or unskilled, manufacturing, mining, construction, mechanical, maintenance, technical installation and many other types of physical work...
manufacturing jobs on which the African-American and other less skilled workers depended. The developing service economy
Service economy
Service economy can refer to one or both of two recent economic developments. One is the increased importance of the service sector in industrialized economies. Services account for a higher percentage of US GDP than 20 years ago...
and relocated industry often required higher technical abilities and costly commuting to better-off (typically suburban) districts of metropolitan areas. The approximate percentage of working black men in metropolitan areas that were holding industrial jobs fell from 70% in 1970 to 28% in 1987. The blacks, especially young, trapped in ghettos, typically lacking dependable transportation, were increasingly unemployed and desolate, under intense pressure to generate income by whatever means available.
The appearance of crack in 1985 and related violence coincided with the War on Drugs in full swing and provided the Republican administration authorities with an expedient target for a high intensity, sustained and highly successful media and political campaign, one that resulted in massive increases in congressional funding and in legal penalties for crack-related activities. The legal process was becoming more skewed against African American men in various respects, including disproportionally harsh penalties for crack, as opposed to powder cocaine, usage and dealing. The Congress passed the increasingly comprehensive and punitive Anti-Drug Abuse Acts in 1986 and again in 1988
Anti-Drug Abuse Act of 1988
The Anti-Drug Abuse Act of 1988, , , established the creation of a drug-free America as a policy goal and established the Office of National Drug Control Policy. The media campaign mentioned in the act later became the National Youth Anti-Drug Media Campaign....
, mandating anti-narcotic participation by the U.S. military, allowing court admission of some illegally obtained evidence and widening the scope of criminal suspects sought and penalized to include also individuals not directly involved in illicit drugs (passive associates such as roommates and family members). The acts also introduced five-year jail term first-time offender minimums for simple possession and set up a racially biased system that differentially targeted the most disadvantaged and impoverished segments of the society, and, when combined with the lax or intentionally biased enforcement practices, guaranteed the disparate racial distribution of the population incarcerated or otherwise controlled by the criminal justice system.
George Bush Sr.
George H. W. Bush
George Herbert Walker Bush is an American politician who served as the 41st President of the United States . He had previously served as the 43rd Vice President of the United States , a congressman, an ambassador, and Director of Central Intelligence.Bush was born in Milton, Massachusetts, to...
played the race card during the 1988 election
United States presidential election, 1988
The United States presidential election of 1988 featured no incumbent president, as President Ronald Reagan was unable to seek re-election after serving the maximum two terms allowed by the Twenty-second Amendment. Reagan's Vice President, George H. W. Bush, won the Republican nomination, while the...
: The Willie Horton
Willie Horton
William R. "Willie" Horton is an American convicted felon who, while serving a life sentence for murder, without the possibility of parole, was the beneficiary of a Massachusetts weekend furlough program...
ad practically destroyed the candidacy of Michael Dukakis
Michael Dukakis
Michael Stanley Dukakis served as the 65th and 67th Governor of Massachusetts from 1975–1979 and from 1983–1991, and was the Democratic presidential nominee in 1988. He was born to Greek immigrants in Brookline, Massachusetts, also the birthplace of John F. Kennedy, and was the longest serving...
. President Bush enthusiastically continued the war on drugs and other policies of his predecessor
Ronald Reagan
Ronald Wilson Reagan was the 40th President of the United States , the 33rd Governor of California and, prior to that, a radio, film and television actor....
. The white general public had embraced the race policies under the crime and drugs disguise and the formerly allied with African Americans Democrats, struggling to reclaim political control, were jumping on the "tough on crime" bandwagon; most progressives were silent on the issue. The new system of racial control, with mass incarceration as its preeminent feature, had thus become an established mainstream social reality, by the early 1990s no longer a subject of major controversy. According to the Sentencing Project
Sentencing Project
The Sentencing Project, based in Washington, D.C., promotes "more effective and humane" alternatives to prison for criminal offenders. It has produced several influential reports on inequalities in the U.S...
, the proportion of Americans that were imprisoned was in 1991 unmatched in history of nations of the world.
Democrat Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
's presidency reinforced and magnified the damage inflicted on African Americans by his predecessors. He endorsed "three strikes
Three strikes law
Three strikes laws)"are statutes enacted by state governments in the United States which require the state courts to hand down a mandatory and extended period of incarceration to persons who have been convicted of a serious criminal offense on three or more separate occasions. These statutes became...
and you're out" federal policies, signed in 1994 a crime bill of unprecedented scope
Violent Crime Control and Law Enforcement Act
The Violent Crime Control and Law Enforcement Act, , , was an act of Congress dealing with crime and law enforcement that became law in 1994. It is the largest crime bill in the history of the US at 356 pages and will provide for 100,000 new police officers, $9.7 billion in funding for prisons and...
and expanded the drug war beyond what was considered possible before; his policies resulted in the largest of any president's tenure increase in the number of inmates. By signing the Personal Responsibility and Work Opportunity Reconciliation Act, President Clinton fulfilled his promise to "end welfare as we know it" and imposed enormous further hardship on the already decimated African American communities. By the mid-1990s, no serious alternatives for dealing with the problem of the largely impoverished and marginalized minorities, beyond the "get tough" approach, were a part of mainstream political discourse and the system of "racialized social control" was firmly in place. At the turn of the twenty-first century, the New Jim Crow was operating at its full capacity, justified in race-neutral terms, but with ninety percent of those imprisoned for drug offenses in many states being a minority black or Hispanic
Hispanic
Hispanic is a term that originally denoted a relationship to Hispania, which is to say the Iberian Peninsula: Andorra, Gibraltar, Portugal and Spain. During the Modern Era, Hispanic sometimes takes on a more limited meaning, particularly in the United States, where the term means a person of ...
people.
Chapter 2: The Lockdown
Chapter 2: The Lockdown describes the structure of mass incarceration, focusing on the War on Drugs. The expanded powers and incentives of the police and the fate of the defendants that fall into the system are discussed. The arrested are typically denied meaningful legal representation, pressured into plea bargain deals and placed under extended control of the penal system, from which they have a slim chance of ever freeing themselves.Between 1980 and 2000, the number of people imprisoned in the United States had increased more than five times per population unit, resulting in a historically unprecedented prison-building boom. The War on Drugs is the single most important culprit and the vast majority of arrests have been made for minor offenses, such as possession of small amounts of marihuana
Cannabis (drug)
Cannabis, also known as marijuana among many other names, refers to any number of preparations of the Cannabis plant intended for use as a psychoactive drug or for medicinal purposes. The English term marijuana comes from the Mexican Spanish word marihuana...
.
The vast expansion of police powers has been facilitated by the US Supreme Court, which has largely exempted the Drug War from the Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
s protections, the protections that up to that point had been upheld by the judiciary in a fairly stringent fashion. Justice Thurgood Marshall
Thurgood Marshall
Thurgood Marshall was an Associate Justice of the United States Supreme Court, serving from October 1967 until October 1991...
expressed his dismay by noticing that there is no drug exception written into the Bill of Rights
United States Bill of Rights
The Bill of Rights is the collective name for the first ten amendments to the United States Constitution. These limitations serve to protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government's power in judicial and other proceedings, and...
, and Justice John Paul Stevens
John Paul Stevens
John Paul Stevens served as an Associate Justice of the Supreme Court of the United States from December 19, 1975 until his retirement on June 29, 2010. At the time of his retirement, he was the oldest member of the Court and the third-longest serving justice in the Court's history...
called the Supreme Court in 1991 a "loyal foot soldier in the Executive
Executive (government)
Executive branch of Government is the part of government that has sole authority and responsibility for the daily administration of the state bureaucracy. The division of power into separate branches of government is central to the idea of the separation of powers.In many countries, the term...
's fight against crime". Numerous other constitutionally protected civil liberties have been likewise compromised by the Supreme Court, which for example allowed forfeiture of property for unproven allegations of illegal drug activity. The new legal rules allow material self-interest (of law enforcement institutions) to interfere with law enforcement pursuits and judgement and make it relatively easy for law enforcement authorities to actively target anybody for virtually any reason they choose.
In the 1991 Florida v. Bostick
Florida v. Bostick
Florida v. Bostick, , overturned a per se rule imposed by the Florida Supreme Court that held consensual searches of passengers on buses were always unreasonable...
case, the US Supreme Court overruled the Florida Supreme Court and gave its approval to "consent searches", in which individuals approached by the police supposedly give their consent to being searched. There may be no indication of criminal activity and people typically cooperate with police "requests" because of feeling intimidated. The validation of consent searches has allowed the police to conduct large scale sweeps in public places, involving individuals they arbitrarily choose, since no reasonable suspicion of criminal activity is required on the part of the police.
In the 1996 Ohio v. Robinette
Ohio v. Robinette
In Ohio v. Robinette, 519 U.S. 33 , the U.S. Supreme Court held that the Fourth Amendment does not require police officers to inform a motorist at the end of a traffic stop that they are free to go before seeking permission to search the motorist's car.-Facts:While driving on a stretch of...
case, the US Supreme Court overruled the Ohio Supreme Court
Supreme Court of Ohio
The Supreme Court of Ohio is the highest court in the U.S. state of Ohio, with final authority over interpretations of Ohio law and the Ohio Constitution. The court has seven members, a chief justice and six associate justices, each serving six-year terms...
. The Ohio court wanted to require police officers using traffic stops (motorists pulled over for alleged traffic violations) as an excuse for conducting drug searches, to tell the offenders explicitly that they are free to leave the scene if they so choose, before asking for permission for the search. The state court wished to impose a limitation on the disturbing and by that time common police practice; the US Supreme Court would have none of it. Such court rulings emboldened the police to push the limits of what they could do, without much fear of adverse legal consequences.
The federal oversight of the War on Drugs is provided by the Drug Enforcement Administration
Drug Enforcement Administration
The Drug Enforcement Administration is a federal law enforcement agency under the United States Department of Justice, tasked with combating drug smuggling and use within the United States...
, which in close cooperation with countless many state and local law enforcement agencies provides training and federal guidelines (e.g. appearance and behavioral profiles of those considered to be promising suspects). At the core of the method used to interdict people involved with illegal drugs are (high) volume sweeps, typically involving traffic stops and consent searches, targeting in practice individuals who give no particular cause for suspicion, but belong to disfavored groups.
Reagan Administration's announcement of the War on Drugs was initially met with some skepticism and resistance from conservative circles concerned with states' rights and from law enforcement agencies pursuing their current local priorities. The convincing took the form of a massive federal financial bribe: Huge cash grants and in 1988 the Edward Byrne Memorial State and Local Law Enforcement Assistance Grant Program
Anti-Drug Abuse Act of 1988
The Anti-Drug Abuse Act of 1988, , , established the creation of a drug-free America as a policy goal and established the Office of National Drug Control Policy. The media campaign mentioned in the act later became the National Youth Anti-Drug Media Campaign....
resulted in the proliferation of highway and localized narcotics task forces. The Pentagon
United States Department of Defense
The United States Department of Defense is the U.S...
became involved in militarization of police departments by delivering to local governments weaponry and equipment intended originally for the defense of the country. By the late 1990s, in the context of the War on Drugs, most police forces across the nation had taken advantage of the resources offered by the federal government and had added a significant military component to their operation.
The implementation of military tactics in urban centers has most often taken the form of paramilitary SWAT
SWAT
A SWAT team is an elite tactical unit in various national law enforcement departments. They are trained to perform high-risk operations that fall outside of the abilities of regular officers...
(Special Weapons and Tactics) units. SWAT teams had been (rarely) utilized from the 1960s for high-profile emergencies, such as hostage situations and hijackings, and later to combat terrorism
Terrorism
Terrorism is the systematic use of terror, especially as a means of coercion. In the international community, however, terrorism has no universally agreed, legally binding, criminal law definition...
. From the 1980s many SWAT teams were formed with federal help in localities, to be used primarily and with increasing frequency for serving drug warrants on suspected drug dealers. The SWAT raids, often ruthlessly carried out in minority communities, became very common (40,000 deployments in 2001) and resulted in many unwarranted and unjustified fatalities, trauma and other damage. The transformation from community to military policing began with the passing by the Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
in 1981 of the Military Cooperation with Law Enforcement Act
Military Cooperation with Civilian Law Enforcement Agencies Act
The Military Cooperation with Civilian Law Enforcement Agencies Act is a United States federal law enacted in 1981 that allowed the military of the United States to cooperate with law enforcement...
; the act authorized police forces of several different types to access a variety of military facilities and resources, for the purported purpose of drug interdiction. Presidents George Bush
George H. W. Bush
George Herbert Walker Bush is an American politician who served as the 41st President of the United States . He had previously served as the 43rd Vice President of the United States , a congressman, an ambassador, and Director of Central Intelligence.Bush was born in Milton, Massachusetts, to...
and Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
enthusiastically continued the drug policies of the Reagan administration. The size of federal disbursements to the police of a given locality was linked to the number Drug War arrests made there.
The Congressional Comprehensive Drug Abuse Prevention and Control Act of 1970
Comprehensive Drug Abuse Prevention and Control Act of 1970
The Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. No. 91-513, 84 Stat. 1236 , is a United States federal law that, with subsequent modifications, requires the pharmaceutical industry to maintain physical security and strict record keeping for certain types of drugs...
was amended by the Comprehensive Forfeiture Act of 1984 (part of the Comprehensive Crime Control Act of 1984). The new law allowed federal law enforcement agencies to retain and use proceeds from drug operations forfeitures, while state and local police agencies were allowed to keep up to 80% of the total value of confiscated assets. The broadly interpreted federal forfeiture laws gave police departments a pecuniary interest, and therefore another powerful incentive, to aggressively wage the War on Drugs. The rules of the War (or their absence) were increasingly skewed against the suspected or accused, most of whom lacked the resources to legally defend themselves or "buy their freedom". The result was a large-scale confinement of persons whose role in the drug enterprise had been marginal.
Some of the abuse that had taken place when assets were seized by the police became well-publicized and led to the passage of the Civil Asset Forfeiture Reform Act of 2000, in which the Congress addressed some of the most egregious issues, leaving however the system of financial incentives for the police intact. The political and cultural aspects of the War on Drugs were not dealt with, and as a result the system is now well-entrenched and fully institutionalized, with funding provided on all levels, from federal to local. Barack Obama
Barack Obama
Barack Hussein Obama II is the 44th and current President of the United States. He is the first African American to hold the office. Obama previously served as a United States Senator from Illinois, from January 2005 until he resigned following his victory in the 2008 presidential election.Born in...
stated in 2008 that reviving the Byrne grant program was "critical to creating the anti-drug task forces our communities need".
Indigent criminal defendants are most often not provided with meaningful legal representation (to which they are in theory entitled) and their cases very rarely go to trial. Threatened with severe mandatory sentences
Mandatory sentencing
A mandatory sentence is a court decision setting where judicial discretion is limited by law. Typically, people convicted of certain crimes must be punished with at least a minimum number of years in prison...
, they are, in nearly all instances, pressured into plea bargain
Plea bargain
A plea bargain is an agreement in a criminal case whereby the prosecutor offers the defendant the opportunity to plead guilty, usually to a lesser charge or to the original criminal charge with a recommendation of a lighter than the maximum sentence.A plea bargain allows criminal defendants to...
deals, which in practice place them under permanent control of the criminal justice system. In its 2004 report the American Bar Association
American Bar Association
The American Bar Association , founded August 21, 1878, is a voluntary bar association of lawyers and law students, which is not specific to any jurisdiction in the United States. The ABA's most important stated activities are the setting of academic standards for law schools, and the formulation...
stated that countless poor people accused of crimes are in reality denied access to a lawyer. Minors are routinely manipulated to wave their right to counsel.
With the Congressional Anti-Drug Abuse Act of 1986, disproportionately long mandatory minimum prison terms were imposed for low-level dealing and possession of crack cocaine. State assemblies quickly joined the trend with similar harsh legislation, introducing also "three strikes
Three strikes law
Three strikes laws)"are statutes enacted by state governments in the United States which require the state courts to hand down a mandatory and extended period of incarceration to persons who have been convicted of a serious criminal offense on three or more separate occasions. These statutes became...
" laws that mandated a life sentence for a third felony offense of any kind. The draconian mandatory penalties, entirely out of step with the practice abroad in developed countries, eliminated judicial discretion and made the prosecutors, not judges or juries, the most powerful parties in the criminal legal process. The severity of charges filed against the defendant and the plea bargain process, as well as the deals made as its outcome, are at the prosecutor's discretion. The possible disastrous consequences of choosing a trial compel many accused, who lack legal experience or judgement, to plead guilty and opt for a deal offered, regardless of whether they committed the crime or not.
The majority of the Supreme Court justices have consistently upheld the constitutionality and practice of harsh mandatory sentencing, for example in the 1991 Harmelin v. Michigan
Harmelin v. Michigan
Harmelin v. Michigan, 501 U.S. 957 , was a case decided by the Supreme Court of the United States under the Eighth Amendment to the United States Constitution...
case. California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
's three strikes law was upheld in the 2003 Lockyer v. Andrade
Lockyer v. Andrade
Lockyer v. Andrade, , decided the same day as Ewing v. California, held that there would be no relief by means of a petition for a writ of habeas corpus from a sentence imposed under California's three strikes law as a violation of the Eighth Amendment's prohibition of cruel and unusual...
, where a sentence of fifty years without parole for minor theft was declared valid. According to the Court, the Eight Amendment
Eighth Amendment to the United States Constitution
The Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...
prohibition against cruel and unusual punishment
Cruel and unusual punishment
Cruel and unusual punishment is a phrase describing criminal punishment which is considered unacceptable due to the suffering or humiliation it inflicts on the condemned person...
does not apply in such cases. Heavy mandatory penalties have been most often invoked in nonviolent cases, against low-level drug offenders.
The huge rise of the US prison population has been caused by the "tough on crime" laws and policies, not by increasing crime rates. Individuals labeled or branded "felons", whether actually serving jail time, or managed by the criminal justice system in other ways (as happens in the majority of cases), are, because of the myriad legally mandated restrictions and discrimination and the associated stigma, unable to reenter the mainstream society and tend to be rearrested. A violation of a parole condition is a leading case of imprisonment. The members of the marginalized felon population "undercaste" end up cycling in and out of penal confinement, sometimes for the rest of their lives.
Chapter 3: The Color of Justice
Chapter 3: The Color of Justice analyzes the ways in which the formally race-neutral criminal justice system ends up producing disproportionately large numbers of "black and brown men" within its domain. Of crucial importance has been the role of the Supreme CourtSupreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
, which has rejected challenges to the police procedures employed and legal processes utilized. The high court has also not recognized the validity of statistical evidence of bias and discrimination, requiring instead specific proof of individual prosecutorial misconduct
Prosecutorial misconduct
In jurisprudence, prosecutorial misconduct is a procedural defense; via which, a defendant may argue that they should not be held criminally liable for actions which may have broken the law, because the prosecution acted in an "inappropriate" or "unfair" manner. Such arguments may involve...
in each case, an indication of ill intention that is in practice impossible to obtain. In 2001 the court rejected private law suits brought under Title VI of the Civil Rights Act of 1964
Civil Rights Act of 1964
The Civil Rights Act of 1964 was a landmark piece of legislation in the United States that outlawed major forms of discrimination against African Americans and women, including racial segregation...
, thus eliminating the last avenue for challenging racial profiling
Racial profiling
Racial profiling refers to the use of an individual’s race or ethnicity by law enforcement personnel as a key factor in deciding whether to engage in enforcement...
through litigation. The enormous racial disparity among those swept into the mass incarceration system (now legally immunized from claims of racial bias) cannot, according to Alexander, be explained by differential crime rates. The system is structured to generate this particular outcome.
The law enforcement methods developed in the course of the War on Drugs are utilized almost exclusively in low income communities of racial minorities; they would result in publicized outcry if practiced in middle class white areas. The outcomes differ among the regions and states, but in 2000, according to the Human Rights Watch
Human Rights Watch
Human Rights Watch is an international non-governmental organization that conducts research and advocacy on human rights. Its headquarters are in New York City and it has offices in Berlin, Beirut, Brussels, Chicago, Geneva, Johannesburg, London, Los Angeles, Moscow, Paris, San Francisco, Tokyo,...
, blacks were sent to prison on drug charges at the rate of 20 to 57 times that of whites in fifteen states. Nationwide, African-American prison admission for drug offenses rates had increased 26 times between 1983 and 2000, 22 times in case of Latinos, and 8 times for whites. Three-fourths of the imprisoned have been blacks and Latinos, while the majority of illegal drug users and dealers are white. The relevant black imprisonment has declined more recently by some 25% from its peak in the 1990s, but African Americans are still being incarcerated at grossly disproportionate rates. The official explanation for the disparate numbers, the crime rates, is belied by research data: The surveys that have been conducted so far show people of all races using illegal drugs at "remarkably similar rates". Drug markets reflect racial and socioeconomic boundaries, that is most users buy drugs locally from their own. Yet in 2006 for example, 1 out of every 14 black men was incarcerated, compared to 1 in 106 ratio for white men, due largely to the racial bias of the drug war practices.
This raises the issue of how exactly such disparity comes about in a society where old-fashioned racism is not normally practiced and racial discrimination is condemned by most, under a formally colorblind criminal justice system. The usual opinion is that the grossly disproportionate incarceration rates are the result of black men having much higher rates of violent crime; it is however drug convictions, not violent crime, that are primarily responsible for the prison boom. According to Alexander, "despite the colorblind rhetoric and fanfare of recent years, the design of the drug war effectively guarantees that those who are swept into the nation's new undercaste are largely black and brown".
The system operates in two major stages. The first is the granting law enforcement personnel extraordinary discretion as to whom to stop, investigate further, arrest and charge. This allows beliefs, stereotypes, policies and assumptions to unduly influence the decisions of officials. The second step is to disable the ability of court systems to consider claims of racial discrimination in the criminal justice system. It has been accomplished by requiring an unreasonably high standard of proof in discrimination cases: a (unobtainable in almost all cases) proof of some official's intentional racial discrimination (bigotry, racial hostility), rather than allowing a demonstration of the clearly discriminatory outcome of the legal process. This design turned out to be extraordinarily effective for the promoters of the system of racial control and extremely damaging for the segments of the population subjected to it.
By 1985 the War on Drugs had become largely localized, partially because of the persistent government and media promotion campaign (most prominently in television presentations), in poor communities of color, identified with the highly publicized in the media crack cocaine
Crack cocaine
Crack cocaine is the freebase form of cocaine that can be smoked. It may also be termed rock, hard, iron, cavvy, base, or just crack; it is the most addictive form of cocaine. Crack rocks offer a short but intense high to smokers...
usage and dealing. Law enforcement officials replaced drug treatment center sources as media "experts" and the imagery of drug, or any other street criminals being dark was firmly established in public perception. Equally affected were officials in public capacity, such as police officers, prosecutors and jurors, who with the rest of the viewers primed by the campaign, developed conscious or (often) unconscious anti-black biases. An effective "public consensus was constructed by political and media elites", directed against the demonized black and brown men and women. This framework made it the obvious choice for the police to concentrate their War on Drugs efforts on black inner cities
Inner city
The inner city is the central area of a major city or metropolis. In the United States, Canada, United Kingdom and Ireland, the term is often applied to the lower-income residential districts in the city centre and nearby areas...
. The perceived enemy was also the one most accessible and easy to pursue, because of having the least political clout.
Back in 1938 the US Supreme Court recognized its own responsibility
United States v. Carolene Products Co.
United States v. Carolene Products Company, 304 U.S. 144 , was an April 25, 1938 decision by the United States Supreme Court. The case dealt with a federal law that prohibited filled milk from being shipped in interstate commerce...
in protecting "discrete and insular minorities" to whose interests the majoritarian political process may be at times be injurious, and to guarantee constitutional rights of groups deemed unpopular or subject to prejudice. In the 1990s however the high court, according to Alexander, adopted rules that would actually maximize the likely discriminative effects. In Whren v. United States
Whren v. United States
Whren v. United States, 517 U.S. 806 , was a United States Supreme Court decision which "declared that any traffic offense committed by a driver was a legitimate legal basis for a stop."...
, the police stop and search procedures, even without a presumption of criminal activity likely to have occurred, were upheld, declared not in violation of the ban on unreasonable searches and seizures of the Fourth Amendment
Fourth Amendment to the United States Constitution
The Fourth Amendment to the United States Constitution is the part of the Bill of Rights which guards against unreasonable searches and seizures, along with requiring any warrant to be judicially sanctioned and supported by probable cause...
. The lack of such likelihood requirement allowed unlimited racially discriminatory discretion on the part of the police. The court also barred the accused from claiming racial bias under the Fourth Amendment. Using the Fourteenth Amendment
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
for this purpose was formally allowed, but the Supreme Court had already effectively eviscerated that avenue for seeking legal redress in an earlier 1987 case
McCleskey v. Kemp
McCleskey v. Kemp, 481 U.S. 279 , was a United States Supreme Court court case, in which the death penalty sentencing of McCleskey for armed robbery and murder was upheld...
.
In McCleskey v. Kemp
McCleskey v. Kemp
McCleskey v. Kemp, 481 U.S. 279 , was a United States Supreme Court court case, in which the death penalty sentencing of McCleskey for armed robbery and murder was upheld...
, under the Supreme Court consideration in 1987, the alleged racial bias in Georgia
Georgia (U.S. state)
Georgia is a state located in the southeastern United States. It was established in 1732, the last of the original Thirteen Colonies. The state is named after King George II of Great Britain. Georgia was the fourth state to ratify the United States Constitution, on January 2, 1788...
death penalty
Capital punishment
Capital punishment, the death penalty, or execution is the sentence of death upon a person by the state as a punishment for an offence. Crimes that can result in a death penalty are known as capital crimes or capital offences. The term capital originates from the Latin capitalis, literally...
practice was challenged. Racial bias in violation of the Fourteenth and Eight
Eighth Amendment to the United States Constitution
The Eighth Amendment to the United States Constitution is the part of the United States Bill of Rights which prohibits the federal government from imposing excessive bail, excessive fines or cruel and unusual punishments. The U.S. Supreme Court has ruled that this amendment's Cruel and Unusual...
Amendments was claimed by the defendant, based on the extensive study of Georgia murder cases published by David C. Baldus
David C. Baldus
David Christopher Baldus was a Joseph B. Tye professor of law at the University of Iowa. He held the position from 1969 until his death in 2011...
and others. Georgia prosecutors were found in the study to be disproportionally more inclined to seek the death penalty when the victim was white and defendant black, rather than the other way around (70% to 19% respectively), which resulted in defendants charged with killing of white victims receiving the death penalty at the rate eleven times that of defendants charged with killing of black victims (4.3 times after adjusting for a number of non-racial variables). Black defendants found guilty of killing white victims were the group most likely to be sentenced to death. By a one vote margin the high court, apparently worried about undermining the entire U.S. criminal justice system practice, immunized it from claims of racial bias, by ruling that statistical arguments alleging discriminatory court decisions (patterns of discrimination) did not prove unequal treatment (and therefore could not be used in legal challenges) and that conscious, discriminatory intent on the part of plaintiff officials must be demonstrated. The requirement of proving deliberate official bias in each individual case, impossible to satisfy within the existing trial procedures, has rendered challenging court racial discrimination under the Fourteenth and Eight Amendments impractical.
There have been judicial attempts to circumvent the legal consequences of McCleskey v. Kemp, including the issue of disparate sentencing laws for crack and powder cocaine violations, but they were unsuccessful or reversed on appeals based on the high court precedent. In 1995 the Georgia Supreme Court, faced with the fact that 98.4% of those serving the life sentence under a "two strikes" drug sentencing provision were black, in a 4-3 decision attempted to force state prosecutors to provide a race-neutral explanation for this outcome (the prosecutors had invoked the life term penalty in 1% of white, but in 16% of black eligible cases). Instead of complying, the Georgia attorney general demanded a rehearing through a petition signed by all 46 of the state's district attorneys, all of whom were white. The prosecuting establishment felt again that the implementation of the ruling would "paralyze the criminal justice system" and the Georgia court was pressured to reverse itself. The new decision was formally based mostly on McCleskey v. Kemp.
In United States v. Armstrong in 1996, the defendant attempted to obtain a discovery
Discovery (law)
In U.S.law, discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for...
order to show selective enforcement, because out of over two thousands crack cocaine federal prosecutions in California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
, none, according to the government three-year record, were against whites (the majority of crack offenders are believed to be white). The discovery that could point to selective prosecution (switching by federal prosecutors of white defendants to the state system, where crack penalties were far less severe, was suspected), granted by the district court in California, was denied by the U.S. Supreme Court, which felt that deference to the exercise of prosecutorial discretion must be kept intact at the expense of non-discriminatory treatment of the accused. The court-protected discretion of prosecution includes the domains of charging, plea bargain
Plea bargain
A plea bargain is an agreement in a criminal case whereby the prosecutor offers the defendant the opportunity to plead guilty, usually to a lesser charge or to the original criminal charge with a recommendation of a lighter than the maximum sentence.A plea bargain allows criminal defendants to...
, transfer of cases and sentencing. Studies have shown that in prosecutor-controlled pretrial negotiation
Plea bargain
A plea bargain is an agreement in a criminal case whereby the prosecutor offers the defendant the opportunity to plead guilty, usually to a lesser charge or to the original criminal charge with a recommendation of a lighter than the maximum sentence.A plea bargain allows criminal defendants to...
process whites are far more successful than non-whites. Prosecutorial discretion includes the ability to transfer cases from state to the federal system (or the other way around) and transfer juveniles to adult courts. African-American minors, who account for 16% of all youth in the United States, constitute 28% of all juveniles arrested, 35% of those redirected to adult criminal courts and 58% of all minors admitted in state adult prisons. Differential treatment of white and non-white youth by prosecutors, who have fought against and are protected from any judicial checks or scrutiny by the Supreme Court rulings, is one major cause of the disparities. The U.S. Supreme Court, according to Alexander, devised a system, which appears to be colorblind, but in which "racial biases and stereotypes are given free rein".
Black defendants who go through criminal trials may end up before a jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
; the selection of jurors and racial composition of juries have always been of great importance to the accused. In 1880 in Strauder v. West Virginia
Strauder v. West Virginia
Strauder v. West Virginia, , was a United States Supreme Court case about racial discrimination.-Background:At the time, West Virginia excluded African-Americans from juries. Strauder was a Black man who, at trial, had been convicted of murder by an all-white jury...
, the US Supreme Court, based on the then recent Fourteenth Amendment, adamantly rejected the automatic exclusion of blacks from jury duty based on race. In reality however, convicting of African Americans by all-white exclusionary juries had remained regular practice throughout the South and the outcomes of such trials were upheld by the high court on a number of occasions, with the exception of a couple of cases in the 1930s (Scottsboro Boys
Scottsboro Boys
The Scottsboro Boys were nine black teenage boys accused of rape in Alabama in 1931. The landmark set of legal cases from this incident dealt with racism and the right to a fair trial...
, Hale v. Kentucky
Hale v. Kentucky
Hale v. Kentucky, 303 U.S. 613 , was a United States Supreme Court case relating to racial discrimination in the selection of juries for criminal trials. The case overturned the conviction of an African American man accused of murder because the lower court of Kentucky had systematically excluded...
). In the 1965 Swain v. Alabama
Swain v. Alabama
Swain v. Alabama, 380 U.S. 202 , was a case heard before the Supreme Court of the United States regarding the legality of a struck jury....
decision, the Supreme Court provided a numerically insignificant protection against all-white juries, allowing (racially motivated) peremptory challenge
Peremptory challenge
Peremptory challenge usually refers to a right in jury selection for the defense and prosecution to reject a certain number of potential jurors who appear to have an unfavorable bias without having to give any reason...
s, on the condition that a given prosecutor had not always excluded blacks. This result was overruled in 1986 in Batson v. Kentucky
Batson v. Kentucky
Batson v. Kentucky, , was a case in which the United States Supreme Court ruled that a prosecutor's use of peremptory challenge—the dismissal of jurors without stating a valid cause for doing so—may not be used to exclude jurors based solely on their race...
, when, based on the Fourteenth Amendment, the selection of jurors based on race was explicitly prohibited. The ruling, believed at that time to be of fundamental importance for the rights of the defendants of color, has subsequently been practically compromised by prosecutorial practice and further court decisions that accepted the circumventing strategies. The pool of available black jurors had already been severely limited, because of the government lists from which jurors are selected (typically registered voters or vehicle owners) and the widely applied (by the federal government and most states) exclusion of felons, often for life. To remove most of the remaining African Americans, the prosecutors now had to come up with race-neutral explanations. In 1995, in Purkett v. Elem, the court accepted the plausibility of using trivial or arbitrary excuses for exclusion of jurors, as long as they were not racially based, letting the trial judge rule on the validity of the reasons given for the challenges. Since that time federal courts have tolerated many cases of practical, if informal exclusion of blacks from juries. Miller-El v. Cockrell of 2003 was an exception, because a jury selection manual with racial criteria was found to have been used, which violated the prevalent contemporary standard of condoning discrimination, on the condition that the policy is not explicitly stated.
While the prosecutorial class has the most practical power in the criminal justice system, the police enjoys the greatest discretion in deciding where the War on Drugs is waged and which specific enemy is being targeted and pursued. Large scale militarized police operations in more affluent neighborhoods (shown by research to be equally affected by illegal drug use) are in the US unthinkable, for a number of structural and political reasons (such activities would be career-suicidal for the police in the first place). The obvious and intended choice for aggressive police action is the ghetto of underprivileged black and brown people, invariably present in every urban area. The overbearing police presence in such places is referred to by local youth as "The Occupation".
A team of researchers at the University of Washington
University of Washington
University of Washington is a public research university, founded in 1861 in Seattle, Washington, United States. The UW is the largest university in the Northwest and the oldest public university on the West Coast. The university has three campuses, with its largest campus in the University...
(Katherine Beckett and others) published in 2005 and 2006 the results of their empirical studies of illicit drug market practices and police response in Seattle. They found that police priority enforcement in minority neighborhoods and actions preferentially directed against members of the black and Latino ethnicities could not be justified or explained by the phenomena conventionally claimed to be responsible by defenders of the government drug policies, such as high rates of drug offending, accessibility of "open-air drug markets", crime rates, violence, citizen complaints etc. Police stereotypes and the assumption that drug dealing and usage crimes typically occurred within the minority communities, combined with the perception that crack, associated with urban blacks, was the single most important culprit, resulted in a situation where whites were "not perceived as drug offenders by Seattle police officers". The department members therefore directed their enforcement efforts in accordance with this politicized, "racialized conception of the drug problem".
Altering the ways of the police and defense of other rights of an unpopular minority (perceived "black criminals" in this case) could properly be accomplished through the court system, utilizing the Fourteenth Amendment's equal protection guarantee. This however is no longer feasible, because of the unreasonably high barriers and procedural requirements that have been imposed by the courts, including the standing requirement
Standing (law)
In law, standing or locus standi is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case...
. The "standing" are very narrowly defined, in racial cases usually impossible to fulfill criteria that the party bringing a discrimination suit must fulfill in order to show that he or she properly belongs to the category claimed for redress. In City of Los Angeles v. Lyons
City of Los Angeles v. Lyons
City of Los Angeles v. Lyons, 461 U.S. 95 was a United States Supreme Court decision holding that the plaintiff, Adolph Lyons, lacked standing to challenge the city police department's alleged chokehold policy. Lyons, an African American, had been subjected to a chokehold after being stopped for...
the plaintiff sought to force the Los Angeles
Los Ángeles
Los Ángeles is the capital of the province of Biobío, in the commune of the same name, in Region VIII , in the center-south of Chile. It is located between the Laja and Biobío rivers. The population is 123,445 inhabitants...
police to discontinue a violent procedure that he was subjected to (and others had been killed by), but in 1983 the Supreme Court declined and established the normally impossible to meet standing requirements that have since prevented or discouraged further legal challenges to (even obviously illegal and discriminatory) police practices. In a series of rulings the Supreme Court has also declared state institutions immune to monetary damage suits and greatly restricted the applicability of such lawsuits (proved intentional discrimination required) in case of local government units.
In the 1975 United States v. Brignoni-Ponce
United States v. Brignoni-Ponce
United States v. Brignoni-Ponce, , was the case in which the Supreme Court determined it was a violation of the Fourth Amendment for a roving patrol car to stop a vehicle solely on the basis of the driver appearing to be of Mexican descent...
case, the Supreme Court allowed the police to take into account racial appearance (Mexican in this instant) of motorists when making discretionary traffic stop and search decisions. This has led to informal policies of police departments, which consider racial profiling
Racial profiling
Racial profiling refers to the use of an individual’s race or ethnicity by law enforcement personnel as a key factor in deciding whether to engage in enforcement...
to have taken place only when race can be shown to be the only criterion involved. In practice however race is rarely the sole reason, but often the determinative reason. The racial disparities of the War on Drugs are exacerbated by the police practice of selective targeting of "high crime" minority ghettos; black youth accumulate much higher criminal records than their white counterparts, who do not live in neighborhoods heavily targeted by the police.
Numerous studies have shown a dramatic pattern of racial bias also in situations where the racial minorities do not numerically predominate, prominently in highway patrol stops and searches. African-American and Latino divers stopped and searched in disproportionate numbers consequently constitute a large majority of those arrested and charged with drug crimes. There is no positive correlation between the frequency of occurrence of drug violations among racial groups and criminal drug charges filed by the police; the relationship depends on the make-up of motorists subjected to discretionary stops.
Pedestrian stop and frisk tactics, widely practiced by the police in New York City
New York City
New York is the most populous city in the United States and the center of the New York Metropolitan Area, one of the most populous metropolitan areas in the world. New York exerts a significant impact upon global commerce, finance, media, art, fashion, research, technology, education, and...
and other municipalities, target blacks and Latinos at the rates much greater than white pedestrians and likewise contribute to the racially disparate proportions among those charged with drug crimes.
Possibly the fatal blow to racial bias anti-discrimination litigation was delivered in 2001 by the US Supreme Court in Alexander v. Sandoval
Alexander v. Sandoval
Alexander v. Sandoval, 532 U.S. 275 , was a United States Supreme Court decision which held that a regulation enacted under Title VI of the Civil Rights Act of 1964 did not include a private right of action to allow private lawsuits based on evidence of disparate impact.-Background:In 1990 Alabama...
. The merits of the case had never been considered, because the court decided that Title VI of the Civil Rights Act of 1964
Civil Rights Act of 1964
The Civil Rights Act of 1964 was a landmark piece of legislation in the United States that outlawed major forms of discrimination against African Americans and women, including racial segregation...
, on which the plaintiffs' reasoning was based, does not provide a "private right of action" (such as suits by civil rights organizations) and its antidiscrimination provisions can be used in suits by the federal government only. Title VI and its pursuant regulations prohibit federally funded activities from race discrimination, based on their discriminatory impact that cannot be justified by law enforcement necessity, not on the necessity of proving intention to discriminate. Law enforcement agencies involved in the drug war receive federal funding, so Title VI had been seen and used as the avenue through which local enforcement tactics, such as pretext stops and consent searches, could be curtailed. Title VI, limited to the federal government enforcement initiative, is of little use, given the central government's limitations and its institutional reluctance to confront state and local authorities (and the fact that the War on Drugs has been waged and maintained by the federal government itself).
This and other similar legal outcomes have in practice thoroughly immunized the system of mass incarceration from claims of racial bias that can be filed in courts, at every stage of the criminal justice process. According to Alexander, the rulings of the Supreme Court in their totality "guarantee that those who find themselves locked up and permanently locked out due to the drug war are overwhelmingly black and brown".
Chapter 4: The Cruel Hand
Chapter 4: The Cruel Hand considers how the system operates once a prisoner is released. The formal discrimination and social stigmatization that follow prevent the former convict from re-integrating into the society and unravel social structures of the African-American community.Chapter 5: The New Jim Crow
Chapter 5: The New Jim Crow explores the many parallels between the current practice of mass incarceration of the racial minority and the former Jim Crow legal system. In both cases legalized discrimination marginalizes and physically separates large segments of the African American community (now in penal institutions and ghettos) and then authorizes their inferior treatment in a number of fields. Racial bias suits have been rendered ineffective by the federal court system, as was the case under Jim Crow. The stigma of criminality has replaced the stigma of race and allowed the establishment of a new dividing line between "us" and "them". Differences between the older and current practices are discussed. Most importantly, the earlier systems were designed to exploit black labor, while the new mass incarceration provides for warehousing of a population deemed disposable, not needed for the functioning of the new global economy. The chapter discusses how the white people have also been negatively affected by the new caste system.Chapter 6: The Fire This Time
Chapter 6: The Fire This Time raises the issue of present and future approaches to dealing with the New Jim Crow crisis. The author believes that pushing reforms through a broad-based social coalition, as has been done in the past, while possibly helpful, will not be enough, because "a new system of racialized social control" will eventually appear, assuming forms impossible to predict now. If a movement emerges to confront mass incarceration, it will have to cure the underlying causes and ills in the society at large, which needs to "cultivate an ethic of genuine care" for every individual, regardless of ethnic, gender, class, immigration status, or any other consideration.External links
- The New Jim Crow official site
- In Prison Reform, Money Trumps Civil Rights, Michelle Alexander (The New York Times, May 14, 2011)
- Justices, 5-4, Tell California to Cut Prisoner Population, Adam Liptak (The New York Times, May 23, 2011)
- Trend to Lighten Harsh Sentences Catches On in Conservative States, Charlie Savage (The New York Times, August 13, 2011)
- Sex Offenders: The Last Pariahs, Roger N. Lancaster (The New York Times, August 20, 2011)
- Tortured by Solitude, Sarah Shourd (The New York Times, November 5, 2011)